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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://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

Michigan Bill Would Allow Roadside Drug Tests

Michigan could become the first state in the nation to drug test drivers if a Republican lawmaker has his way. Last week, Rep. Rick Jones (R-Grand Lodge) announced he was filing a bill that would allow police officers to administer roadside drug tests if they have probable cause.

traffic stop scene, from "10 Rules for Dealing with Police" (buy at stopthedrugwar.org/10rules)
Jones, a former sheriff, said the roadside tests could replace what is now an expensive and time-consuming process. Currently, officers who want to test drivers for drugs must get a search warrant to take a blood sample, which is then tested by backlogged state crime labs.

"A portable drug testing kit would be an extremely powerful tool to keep unsafe drivers off our streets. With a portable kit, officers will know in minutes whether the driver is high on drugs," Jones said in a statement

"The kit has the potential to save a great deal of tax dollars by reducing the need for state crime labs to do many tests," Jones continued. "Patrol officers now have to make a judgment call whether they believe a driver is under the influence of drugs. Science has now caught up with the need, and our patrol officers should have the option of using this valuable public safety tool."

Under the proposal, suspected drugged drivers would have to submit to a preliminary saliva drug test that can detect six kinds of drugs, including marijuana, methamphetamines, and cocaine. If the preliminary test, which produces results in minutes, came back positive, additional testing would occur.

The motivation for Jones' bill appears to be his opposition to the state medical marijuana law, enacted by the will of the voters in 2008. Last month, he introduced a bill that would bar medical marijuana "clubs and bars" throughout the state. In a statement then, the former sheriff worried about "clubs where users could get high and drive away, endangering people."

Jones' legislation is actually a three-part package, with House Bill 6430 covering motor vehicles, HB 6431 covering snowmobiles and ATVs, and HB 6432 covering trains.

[Ed: Along with the civil liberties issues, this proposal deserves scrutiny based on the drug test technology in use as well. Research has found that field drug tests commonly in use by police generate frequent false positives, sometimes from mere exposure to air.]

Lansing, MI
United States

Cops Say Yes to California Marijuana Legalization Measure [FEATURE]

It was a law enforcement trifecta in support of California's Proposition 19 Monday, with a phalanx of police, prosecutors, and judges coming out in support of the marijuana legalization initiative in a pair of early morning press conferences in Oakland and Los Angeles and a teleconference later in the day for those unable to attend the live events. The endorsements come with Prop 19 in a very tight race and Election Day just seven weeks away.

While, unsurprisingly, a large number of California law enforcement officials have come out in opposition to Prop 19, Monday's events were designed to show that law enforcement opposition to marijuana legalization is by no means monolithic. Organizers of the events also released a letter endorsing Prop 19 signed by dozens of current and former law enforcement officials.

"As police officers, judges, prosecutors, corrections officials and others who have labored to enforce the laws that seek to prohibit cannabis (marijuana) use, and who have witnessed the abysmal failure of this current criminalization approach, we stand together in calling for new laws that will effectively control and tax cannabis," the letter read. "As criminal justice professionals, we have seen with our own eyes that keeping cannabis illegal damages public safety -- for cannabis consumers and non-consumers alike. We've also seen that prohibition sometimes has tragic consequences for the law enforcers charged with putting their lives on the line to enforce it. The only groups that benefit from continuing to keep marijuana illegal are the violent gangs and cartels that control its distribution and reap immense profits from it through the black market. If California's voters make the sensible decision to effectively control and tax cannabis this November, it will eliminate illegal marijuana distribution networks, just as ending alcohol prohibition put a stop to violent and corrupting gangsters' control of beer, wine and liquor sales."

The same themes were reprised in the three press conferences Monday. "I was with the LAPD when Nixon declared the 'War on Drugs' over 40 years ago and was one of the 'generals' on the front lines who helped implement that same failed drug policy that is still in effect today," said Stephen Downing, a retired deputy chief of police with the LAPD who is now a speaker with the group Law Enforcement Against Prohibition (LEAP). "During my career, I not only saw the ineffectiveness of our marijuana laws up close but also witnessed the harm our prohibition approach inflicts on public safety. By keeping marijuana illegal, we aren't preventing anyone from using it. The only results are billions of tax-free dollars being funneled into the pockets of bloodthirsty drug cartels and gangs who control the illegal market."

Former LAPD sergeant and Los Angeles County deputy district attorney William John Cox added, "This November, Californians finally have a chance to flip the equation and put drug cartels out of business, while restoring public respect for the criminal laws and their enforcement by passing Proposition 19 to control and regulate marijuana."

"This is a very, very good opportunity to increase safety on our streets and highways, get officers out of drug law enforcement and back on patrol," said LEAP executive director Neill Franklin, a now retired 34-year law enforcement veteran. "In addition, it will give up more cops on the streets to focus on drunk and drugged driving. All of our police officers are trained in drug recognition,and this is an opportunity to get more cops out stopping vehicles and checking for those who are driving impaired."

Former San Jose police Chief Joseph McNamara, now a research fellow at Stanford University's Hoover Institute, also took to the podium in support of Prop 19. "I've been studying drugs for years," he said, relating how he rose through the ranks of the NYPD before becoming chief in Kansas City and then San Jose. "We learned pretty quickly in New York that the people we were arresting were low-level offenders. All the arrests weren't doing any good. As cops, we felt the community would be better off if we were arresting robbers, burglars, and rapists. Enforcing prohibition took us away from protecting people on our beat," he said.

"I signed onto Prop 19 because I think it is a real opportunity for the voters to eliminate somewhere between 40 million and 200 million crimes overnight by making legal behavior that is today wasting so many law enforcement resources," McNamara continued. "Prohibition hasn't reduced the use of marijuana, and it also produces enormous funding for the cartels and the drug gangs. And violence, not because people are getting stoned on marijuana, but by the whole gangster syndrome that exists with prohibition driving prices up."

Passage of Prop 19 would be a "game changer," McNamara said. He challenged the media, which has been closely scrutinizing the measure, to apply the same rigorous evaluation to marijuana prohibition itself. "They are ignoring the details of the status quo," he said. "What do we have with this costly war against marijuana?" he asked. "Widespread violence, more use than if it were manufactured legally, and tremendous disrespect for the law."

Former federal prosecutor and California Superior Court Judge James Gray also spoke in support of Prop 19. "I was basically a drug warrior until I saw that the tougher we get with regard to nonviolent drug offenses, the softer we get with everything else because we only have so many resources in the criminal justice system," he said.

Gray also addressed the opposition's "what about the kids" argument by turning it on its head. "We are corrupting our children, not because of marijuana, but because of marijuana prohibition," he argued. "We are putting our children in harm's way. Ask our young people what's harder to get, beer or marijuana, and they will tell you it's easier to get marijuana, because alcohol is regulated and controlled by the government, and illegal marijuana dealers don't ask for ID."

Calling the Prop 19 vote "probably the most important election of my lifetime," Gray said the voters are ahead of the politicians. "I think we have a pretty good chance of doing something good for our state and for the country by passing Prop 19," he concluded.

Monday's law enforcement endorsements are just the latest in a long and ever-growing list of people and organizations lining up to support the measure, including labor unions, the National Black Police Association, the NAACP, doctors, politicians, political parties, and many more. Let's hope that list grows much longer in the remaining weeks until election day on November 2.

CA
United States

Texas Now Prosecuting TWO Medical Marijuana Patients [FEATURE]

Asthmatic medical marijuana patient Chris Diaz sits in jail in Brownwood, Texas, facing up to life in prison for a half ounce of marijuana and three grams of hash. Quadraplegic medical marijuana patient Chris Cain may be joining Diaz behind bars in Beaumont, Texas, after he goes to trial next week. When it comes to medical marijuana, Texas isn't California (or even Rhode Island), and don't you forget it, boy!

seat of injustice
Chris Diaz is learning that the hard way. He was supposedly pulled over for an expired license tag (his defenders say the tag was not expired) while en route from Amarillo to Austin, and according to the DPS trooper's report, would not produce a drivers' license or proof of insurance. He was then arrested for failure to identify, and during a subsequent search, police found a small amount of hashish on his person. A search of the vehicle then turned up additional hash and marijuana in a pill bottle from a California medical marijuana provider. Now, Diaz is facing up to life in prison after being indicted by a Brown County grand jury. He is charged with possession of a controlled substance with intent to deliver, a first-degree felony in the Lone Star State.

Under Texas law, possession of less than two ounces of marijuana is a Class B misdemeanor punishable by up to six months in jail, while possession of hashish is either a state jail felony punishable by up to two years for less than a gram, or a second-class felony punishable by up to 20 years if less than four grams, although probation is also possible.

But because police allegedly read a text message on Diaz's seized cell phone advising a friend that he had some great hash and asking if he wanted any, he was instead indicted on the trafficking charge, punishable by up to life in prison. He remains behind bars -- without his medicine -- on a $40,000 cash bond.

Diaz was diagnosed with asthma just before he turned three, his mother, Rhonda Martin said. "He was on medications ever since. He used a nebulizer, all kinds of inhalers, Albuteral, Advair. He stopped taking them when he was 14 because he didn't like the effects," she recalled. "He said the steroids made him feel agitated and wouldn't take those chemical medications anymore."

While the family was aware of medical marijuana, it was only when Diaz fell ill during a family vacation in California and was hospitalized in intensive care that they first learned about medical marijuana for the treatment of asthma. "We were put in touch with a doctor there, and he recommended it. It was his recommendation Chris was carrying," said Martin.

Neither Brown County prosecutors nor Diaz's court-appointed public defender had responded to Chronicle requests for comment by press time.

Diaz and some of his strongest supporters, including his mother, consider themselves "sovereign citizens," and have a web site, I Am Sovereign, in which they argue their case and attempt to win support for Diaz. But that set of beliefs, which precludes carrying government-issued identification, is also complicating things for Diaz. "Failure to identify" was the first charge he faced, and he was searched and the cannabis was found subsequent to being charged with that. Similarly, the authorities' lack of any records or ID for Diaz played a role in the setting of the high bail.

He's not having an easy time of it in jail, said Martin. "He is not receiving any medical attention. He eats only organic food, but he's not getting that. He was assaulted last Sunday by a jailer when he asked for medication. The jailer got in his face and started screaming and pushing him. Chris didn't react. He is a peaceful man."

"The reality is that this kid is in jail for having medical marijuana and is looking at life in prison," said Stephen Betzen, director of the Texas Coalition for Compassionate Care, which is lobbying for a medical marijuana bill next year in the state legislature. "You've got to be kidding me. You don't give drug addicts life in prison, so why would you do that to a patient with a legitimate recommendation from another state?"

http://stopthedrugwar.org/files/chris-cain.jpg
Chris Cain
Betzen also had real issues with Diaz being stopped in the first place. "The fact of the matter is that Chris was driving home to Austin with legal plates," he said. "The cops lied and said they were expired. Not only did they lie to pull him over, they took a kid with no record and charged him with a life sentence offense for three grams of hash. The people who are perpetrating this need to be brought to justice and their victims need to be released from jail," said Betzen. "You can't just pull people over because they're brown or from California and begin to search them. There's a whole amendment about that."

"I'm surprised somebody is facing a life sentence for basically half an ounce," said Kris Hermes, spokesman for the medical marijuana support group Americans for Safe Access. "But in states that don't have medical marijuana laws, authorities are free to arrest and prosecute regardless of whether it is being used medicinally."

Meanwhile, over in Hardin County in East Texas, Chris Cain, 39, will be rolling his wheelchair to court next week, where the quadriplegic faces a jail sentence for possessing less than two ounces of medical marijuana. Cain, who was paralyzed in a diving accident as a teenager, has been an outspoken medical marijuana advocate for a decade.

He was arrested in 2005 when the Hardin County Sheriff's Office raided his home with the assistance of two helicopters, seized three joints, and threw him in jail. He wound up on probation, but could not use his medicine.

"Within six weeks, the spasticity was so bad he was developing bed sores," said Betzen, so he started using again. "The cops would come by every two weeks to see if he was healthy enough to go to jail."

Now, he faces trial again for possession. "They actually want to put him in jail," exclaimed Betzen. "The sheriff there really has a vendetta against him."

While Texas certainly needs to enter the 21st Century when it comes to medical marijuana, the problem is larger than the Lone Star State, said Hermes. "It's critical that we develop a federal medical marijuana law so that people are not treated differently in Texas than in California, and patients who need this medicine in Texas should be allowed to use it with fear of arrest and prosecution. Americans for Safe Access is committed not only to encouraging states to pass medical marijuana laws irrespective of federal policy, but also to push the federal government to develop a policy that will treat patients equitably no matter where in the US they live."

TX
United States

California Medical Marijuana Patients Harassed By US Border Patrol [FEATURE]

Medical marijuana is legal in California, and the US Department of Justice has made it policy to not go after patients and providers in compliance with state law, but California medical marijuana patients who live or travel within 75 miles of the Mexican border are encountering another problem with the feds: the Border Patrol. Under US law, the Border Patrol is allowed to set up what amounts to a "Fourth Amendment-free zone" within that 75-mile perimeter, subjecting any and all comers to warrantless searches in its bid to stop illegal immigration and drug smuggling.

Border Patrol checkpoint with drug dog
Patients and advocacy groups are complaining that the border area checkpoints operated by the Border Patrol, part of the Department of Homeland Security, are sweeping up patients, detaining them, seizing their medicine, and sometimes arresting them on federal drug possession charges.

Retired Fresno fire-fighter Charles Berg is a case in point. Forced to quit working after being injured in a chemical fire, Berg relocated to the border town of Calexico on his physician's advice in order to take advantage of the dry, warm desert climate.

"Because of my remote location, I need to travel to see the medical specialists that treat me, so that I can live in a healthier climate," he wrote in a letter to California NORML seeking assistance. As a border resident, Berg became accustomed to going through Border Patrol checkpoints, but in August 2007 he had the misfortune of encountering one where drug-sniffing dogs were being employed.

"The K-9 was searching vehicles four to five back from the front of the line, but when it got to me the dog and agent stayed with my vehicle and upon reaching the front I was stopped," Berg related. "The agent directing traffic told me to pull over to the side, I started to inquire as to what was going on but was interrupted with a sharp command to, 'PULL OVER NOW!!' I complied immediately and was followed by the K-9 and handler. I was told to get out of the vehicle and to present my ID, all of which I did immediately.  Every time I asked what was wrong I would be interrupted with shouts of 'shut up' or commands to 'sit down.' When agents began to search the vehicle and the dog jumped into my car, I stood up and said, 'Wait a minute, do you have a warrant to do that?' I was immediately restrained and handcuffed. Agents explained to me that I was under arrest because the K-9 had alerted to my vehicle and they were searching for what it alerted to. I was taken inside and bodily searched; my clothing was checked and I was patted down. I was left inside, handcuffed to a chair while my vehicle was searched for over an hour. I was finally released without charges after several hours, having been in custody, searched and arrested, and was then sent on my way with no explanation as to what they were looking for or what they had done. Every time I attempted to ask a question I was told to leave or they would arrest me for trespassing."

While Berg was not prosecuted, he did have his medical marijuana seized, and, to add insult to injury, the Border Patrol also seized his prescription pain medications. But that was not the end of Berg's adventures with the Border Patrol.

In December 2007, while traveling on Interstate 8 on his way to visit a cancer specialist in Phoenix, Berg encountered another Border Patrol checkpoint with a drug-sniffing dog. Again, he was arrested and his medications seized. This time he was stuck in jail for three days. Determined to take a stand, Berg refused his public defender's entreaties to cop a plea. His trial is still pending.

militarized US-Mexico border
"In the last few months since my trial was postponed the situation has gotten worse," Berg wrote. "I still live in Calexico, and have medical needs that require me to travel. I still need to travel to Palm Springs and San Diego at least twice a month. Because I know that my medication will be taken by the Border Patrol, I can no longer go on extended stays. It is an extreme burden to drive the 300-mile round trip, but if I don't do it this way I end up going days without any of my prescriptions and the Border Patrol takes them. My doctor says that pain meds are often excreted through sweat, and that the dogs will alert on that. Unfortunately, I can do nothing about the scents that are left behind. Despite the fact that I have been forced to travel without my meds, I am still stopped and searched by the Border Patrol."

Berg enlisted the help of the Fresno Firefighters union, but they also got nowhere with the Border Patrol. In fact, investigators for the union reported to Berg that they had spoken with an Agent V. Vega, regional Southern California Border Patrol supervisor, who told them: "It would be best if Mr. Berg moved out of the area. The Border Patrol's mission in California is to stop illegal immigration and enforce federal marijuana laws despite California legislation."

Earlier this week, the Chronicle contacted a Border Patrol public information officer for that region, who instead of answering questions asked that they be emailed to him. He has yet to reply to the emails. Calls to Customs and Border Protection headquarters in Washington have not been returned.

Berg is not alone. "Over the past year, we've received multiple reports of people being stopped by the Border Patrol," said Kris Hermes, spokesman for the medical marijuana defense group Americans for Safe Access. "We've had two or three incidents where people were stopped for compliance checks in San Diego County to see if everyone had proper documentation. In those cases, the Border Patrol found medical marijuana, seized the medication, then cited them federally for possession."

San Diego County resident Jim Lacy, 60, didn't get arrested, but he has repeatedly had his medical marijuana seized by the Border Patrol. "I got my card in 2003," said Lacy, who was disabled after being hit by a train. "I almost died, I lost my spleen, I had ribs going through my lung, it left me crippled for life," he said. "The Border Patrol was smaller back then and not so uptight," Lacy said. "They didn't know anything about the California law, they were all fascinated. I showed them my paperwork, and they said just make sure you have the legal amount."

But it didn't quite work out that way, Lacy continued. "I tried it with a joint, I had the paperwork and everything. They found it and took it, and after about 40 minutes of being paraded around they let me go. The next time I tried it with a gram," he added. "They took it and tested it and said it wasn't pot, but they kept it. It was pot! I grew it myself. One agent said he would take it every time," Lacy recalled bitterly.

"The Border Patrol told me they would change their policy if Obama would write a letter like the Department of Justice," Lacy said. [Editor's Note: It was not President Obama, but Attorney General Holder who wrote the memorandum last year instructing the department to not go after patients and providers acting in compliance with state medical marijuana laws. But the Border Patrol is a division of the Dept. of Homeland Security, not DOJ.] "The Department of Justice doesn't control Homeland Security. I've written to all the political leaders, but nothing happens," he said.

"If you're going to have a zero tolerance policy, don't trick people," said Lacy. "People think they're safe in California, but if someone comes from some other county and comes down here, they'll never leave here with their medicine."

The problem has worsened as the Bush and Obama administrations have beefed up staffing for the Border Patrol in the wake of the September 11, 2001, attacks, and, more recently, in response to the uproar over illegal immigration and prohibition-related violence just across the border. The number of agents nearly doubled, from 11,000 in 2000 to 20,000 now, and just this week, Congress passed and President Obama signed a bill that will add another 1,250 agents. (See related story here.)

"I wish they'd stop it," bemoaned Dale Gieringer, director of California NORML. "It just shows what a hydra-headed beast we have to deal with. It's not just DEA and the Department of Justice, but also Homeland Security on the border and Treasury with regard to the ability of dispensaries to get bank accounts, also with the Veterans Administration, which appears to be at least partially cleared up, also HUD with the public housing, also about Department of Transportation drug testing rules, there's just an enormous amount of work to be done at the federal level. We're not going to be out of a job anytime soon."

"Our view is that the federal government should have a clear, uniform policy on medical marijuana," said Hermes. "It's not acceptable that this issue be divided into different policies among the different federal agencies. It is incumbent on the Obama administration to get to work on a comprehensive federal policy on medical marijuana," he said. "The Justice Department has made its position clear with its memorandum last October, and the VA has more recently issued a policy that recognizes medical use," Hermes noted. "Instead of this piecemeal process and selective enforcement, we should be dealing with this uniformly."

ASA wants to hear from patients being hassled by the Border Patrol, Hermes said. "We have a legal hotline where patients can report these incidents. We have not yet taken legal action to address the behavior of the Border Patrol, but we may consider that in the future."

CA
United States

Federal Appeals Court Rejects Warrantless GPS Tracking

The US Court of Appeals for the District of Columbia has rejected the federal government's contention that agents can conduct continuous GPS tracking of suspects without a warrant. In its ruling last Friday, the court held that such warrantless surveillance violated the Fourth Amendment's proscription against unwarranted searches and seizures.

GPS satellite (from noaa.gov)
The ruling came in US v. Maynard, in which two Washington, DC men, Antoine Jones and Lawrence Maynard, were convicted in a joint trial in 2008 of possessing and conspiring to distribute more than 50 pounds of cocaine. The men appealed their convictions, arguing that the government's evidence against them had come from a GPS device unlawfully attached to Jones' Jeep that tracked his movement continually, day and night, for a full month. The use of the device without a warrant violated their rights against unreasonable search and seizure, the pair successfully argued.

"It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work," Judge Douglas Ginsburg wrote on behalf of the three-judge panel that reviewed the case. "It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."

Federal prosecutors argued that several other appellate courts had allowed the use of GPS devices without a warrant, but the DC appeals court held that those cases had not involved extended continuous surveillance. That sort of unfettered use of GPS can reveal personal information and threaten one's reasonable expectation of privacy, the court held.

"Prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to have short perhaps of his spouse," Judge Ginsburg wrote. "The intrusion such monitoring makes into the subject's private affairs stands in stark contrast to the relatively brief intrusion at issue," in the other cases.

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) both filed amicus briefs urging the court to strike down the practice. The two groups welcomed the court's decision.

"The court correctly recognized the important differences between limited surveillance of public activities possible through visual surveillance or traditional 'bumper beepers,' and the sort of extended, invasive, pervasive, always-on tracking that GPS devices allow," said EFF civil liberties Director Jennifer Granick. "This same logic applies in cases of cell phone tracking, and we hope that this decision will be followed by courts that are currently grappling with the question of whether the government must obtain a warrant before using your cell phone as a tracking device."

"GPS tracking enables the police to know when you visit your doctor, your lawyer, your church, or your lover," said Arthur Spitzer, legal director of the ACLU-National Capital Area. "And if many people are tracked, GPS data will show when and where they cross paths. Judicial supervision of this powerful technology is essential if we are to preserve individual liberty. Today's decision helps brings the Fourth Amendment into the 21st Century."

Washington, DC
United States

Drugged Driving: Michigan Supreme Overturns Itself on Marijuana Metabolites Issue

The Michigan Supreme Court Tuesday ruled that it is not illegal to drive while having marijuana metabolites in the body, reversing a 2006 decision by a more conservative version of the court. Marijuana metabolites are not a controlled substance under state law, and their mere presence thus cannot be the basis of a conviction under the state's drugged driving law, the court held.

http://stopthedrugwar.com/files/driving.jpg
The ruling came in People v. Feezel, in which the court overturned the conviction of a driver in the death of a severely drunk pedestrian walking in the middle of a five-lane road at night. The driver, George Feezel, was himself borderline intoxicated on alcohol, blowing a 0.009, and also tested positive for marijuana metabolites, which can linger in the system for days or weeks after the pot high is gone. Feezle was found not guilty of drunk driving causing a death, but convicted of second-offense drunk driving (a misdemeanor in Michigan), leaving the scene of a fatal accident, and driving under the influence of marijuana -- although there was no testimony to the effect that he had used marijuana that evening and there was testimony to the contrary.

The court ruled that a Washtenaw County jury should have been allowed to hear evidence the victim was drunk, remanding the case back to circuit court. But in ruling that marijuana metabolites are not a controlled substance, the court invalidated what was in effect a per se zero tolerance drugged driving law that allowed for people to be convicted of driving while impaired when they were not actually shown to be impaired.

"We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 [controlled substances act] and, therefore, a person cannot be prosecuted under MCL 257.625(8) [drugged driving act] for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system," read the opinion.

The opinion, largely a demolition of the previous Supreme Court's 2006 ruling in People v. Derror that marijuana metabolites are a controlled substance, thus allowing for drugged driving convictions based solely on their presence, noted that Michigan is now a medical marijuana state and that allowing Derror to stand would unfairly impact medical marijuana patients.

Under Derror, Justice Corrigan wrote for the majority, "Individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person's blood for 18 hours and in a person's urine for up to 4 weeks."

It's not just about medical marijuana patients, the opinion suggested: "Thus, under Derror, an individual who only has 11-carboxy-THC in his or her system is prohibited from driving and, at the whim of police and prosecutors, can be criminally responsible for choosing to do so even if the person has a minuscule amount of the substance in his or her system. Therefore, the Derror majority's interpretation of the statute defies practicable workability given its tremendous potential for arbitrary and discriminatory enforcement."

It is neither fair nor just nor in the interest of public safety to charge people with drugged driving who aren't impaired. Finally, there is a Michigan Supreme Court that recognizes this.

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