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Search and Seizure: US Supreme Court Okays Passenger Frisks During Traffic Stops

The US Supreme Court ruled Monday that police officers have the right to frisk passengers in cars stopped for traffic offenses even if they have no evidence the passenger has committed a crime or is about to do so. The ruling marks the latest in a now long line of high court decisions since the end of the Warren court -- many of them in drug cases -- that have eroded the Fourth Amendment's proscription against warrantless searches.

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In its decision, the Supreme Court unanimously rejected an Arizona appeals court ruling that threw out the evidence in one such search as unconstitutionally obtained.

The ruling came in Arizona v. Johnson, in which Lemon Johnson was the back seat passenger in a car pulled over by anti-gang police in Oro Valley. After questioning Johnson in the car and being informed that he was from "a place [the officer] knew was home to a Crips gang" and that he had served time for burglary, the officer, the officer asked him to get out of the car for further questioning. Noting also that Johnson wore a blue bandana and had a scanner in his pocket, the officer "patted him down for officer safety."

During the pat-down search, the officer found a pistol and a small bag of marijuana. Johnson was charged with weapons and drug possession offenses. He was convicted at trial, but that conviction was overturned by the appeals court, which held that although Johnson had been lawfully detained when police stopped the car for the traffic violation, during the course of the encounter before Johnson was frisked, the detention had "evolved into a separate, consensual encounter stemming from an unrelated investigation by [the officer] of Johnson's possible gang affiliation." Without "reason to believe Johnson was involved in criminal activity," the court ruled, the officer "had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous."

That's not right, the Supreme Court said in a ruling authored by Justice Ruth Bader Ginsburg. Citing case law going back to Terry v. Ohio (1968), which established that police may constitutionally stop and interrogate people if they reasonably believe a crime has been or is about to be committed and that police can then frisk them to search for weapons, Ginsburg and the court ruled that such pat-down searches are allowable if police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public."

Afghanistan: US Commander Orders NATO to Kill All Opium Dealers -- NATO Balks

According to the German news magazine Der Spiegel, top NATO commander in Afghanistan, US Gen. John Craddock, has issued a "guidance" allowing NATO troops "to attack directly drug producers and facilities throughout Afghanistan." But other NATO commanders do not want to follow that order, leading to a rift at the top of the allied war machine over who is a legitimate military target.

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the opium trader's wares (photo by Chronicle editor Phil Smith during September 2005 visit to Afghanistan)
NATO has reluctantly embraced an expansion of its mission from fighting the Taliban and related insurgents to going after drug trade participants linked to the insurgents. But Gen. Craddock's directive broadens the mission to include any drug traffickers or drug production facilities.

According to the document, a copy of which Der Spiegel says it has, NATO troops can now use deadly force against drug traffickers even when there is no proof they are engaged in armed resistance to NATO/US troops or their Afghan government allies. But that's not what NATO countries bargained for in October, when they agreed to allow NATO soldiers to attack opium traffickers linked to the Taliban.

It is "no longer necessary to produce intelligence or other evidence that each particular drug trafficker or narcotics facility in Afghanistan meets the criteria of being a military objective," Craddock wrote. The alliance "has decided that [drug traffickers and narcotics facilities] are inextricably linked to the Opposing Military Forces, and thus may be attacked."

Gen. Craddock sent his directive on January 5 to Egon Ramms, the German leader at NATO command in the Netherlands, and David McKiernan, commander of the NATO peacekeeping force in Afghanistan. But both commanders rejected it, arguing that the order is illegitimate and violates the laws of war. McKiernan sent a classified letter from Kabul claiming that Craddock was trying to create "a new category" in the rules of engagement that would "seriously undermine the commitment ISAF has made to the Afghan people and the international community... to restrain our use of force and avoid civilian casualties to the greatest degree predictable."

The topic of civilian deaths at the hands of NATO and US troops in Afghanistan is an increasingly prickly one with the people and government of Afghanistan. President Hamid Karzai has complained loudly and frequently about repeated US air strikes killing civilians. NATO was forced this week to defend itself by arguing that it had only killed 97 civilians last year, compared to nearly 10 times that by the Taliban.

It is unclear how the conflict between the NATO allies will be resolved. But if Craddock has his way and NATO declares open season on the drug trade, there will be a true drug war in Afghanistan. In a country where the drug trade accounts for around half the gross national product and where members of the government and independent warlords as well as the Taliban have a hand in the trade, it is difficult to see how that will help win hearts and minds.

Drug Task Forces: House Passes Economic Stimulus Bill with Byrne Grant Funds Intact, Reform Advocates Mobilize

The US House of Representatives Wednesday passed the $819 billion economic stimulus bill endorsed by the Democratic leadership and President Obama. The $4 billion in "public safety" funding in the bill includes $3 billion for the Byrne Justice Action Grant program and $1 billion for the Community Oriented Policing (COPS) program. (For detailed coverage of the Byrne grant program, which funds multi-jurisdictional anti-drug task forces, see our story last week here.) But reform advocates, including 15 national organizations, are calling for the funding to be removed or redirected and hoping the Senate will listen.

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In a Thursday press release, the groups warned that "a 'stimulus' directed at law enforcement is misguided and could be counterproductive by increasing costly arrests and imprisonments for lower-level offenses." Instead, the groups called for the $4 billion to be spent on "more comprehensive approaches" that will reduce incarceration rates and decrease spending on jails, prisons, and police. They called for spending to be refocused on education, job training, treatment, and other programs shown to boost communities and local economies.

"Economic security is a crucial element of an effective public safety strategy, but this funding will stimulate neither Main Street nor safe streets," said Tracy Velázquez, executive director of the Justice Policy Institute (JPI), a research organization that studies alternatives to incarceration. "Instead of placing our limited resources in the most expensive, deep end of the system -- police and prisons -- it's time we move more funding upstream, to the kinds of jobs and programs that are proven to promote safety and support communities."

Under the Bush administration, both the Byrne grants and the COPS program were slashed because they were "not able to demonstrate an impact on reducing crime," and the Byrne grants' "lack of long-term goals and measures inhibited targeting of resources to address crime needs," as the Office of Management and Budget put it.

"A $4 billion mistake now will be magnified in the future; jails and prisons will continue to grow at the expense of states and counties, which will be forced to find funds to imprison people by cutting critical community services," said Velázquez. "Let's seize this opportunity to move in the right direction by investing in a more positive future."

The bill now heads to the Senate.

The groups calling for eliminating the Byrne grant and COPS funding are: the American Civil Liberties Union, the American Humane Association, the American Psychological Association, the Center for Children's Law and Policy, the Drug Policy Alliance, the Interfaith Drug Policy Initiative, the Justice Policy Institute, the Open Society Policy Center, the National Black Police Association, the National Council on Crime and Delinquency, the Rebecca Project for Human Rights, the Sentencing Project, Students for Sensible Drug Policy, the United Methodist Church, and Youth Represent.

Press Release: DEA Defies Obama Pledge, Raids Medical Marijuana State, Denies Marijuana FDA Research

FOR IMMEDIATE RELEASE: JANUARY 29, 2009 CONTACT: Dan Bernath, MPP assistant director of communications, 202-462-5747, ext. 2030 DEA Defies Obama Pledge, Raids Medical Marijuana State, Denies Marijuana FDA Research Medical Marijuana Advocates Call on New President to Rein in Rogue Drug Enforcement Administration WASHINGTON — Officials at the Marijuana Policy Project today accused the Drug Enforcement Administration of defying President Barack Obama's stated position by raiding a California medical marijuana dispensary and called on the president to immediately replace Bush administration holdovers at the DEA. The DEA raided a medical marijuana dispensary in Lake Tahoe, Calif., Jan. 22 – only two days after President Obama's inauguration. During the presidential campaign, Obama repeatedly promised not to waste federal resources interfering in states with laws protecting medical marijuana patients from arrest, and he told Southern Oregon's Mail Tribune editorial board on March 28, 2008, "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue." MPP also urged President Obama to instruct the Bush-appointed current administrator of the DEA to delay a final ruling on a Motion to Reconsider its Jan. 12 decision to deny an application by a University of Massachusetts-Amherst researcher to grow research-grade marijuana in a secure facility, arguing that Obama's own administrator should get to make that decision once in place. The DEA's Jan. 12 denial was one among a series of unrelated 11th-hour regulatory actions the Bush administration attempted to finalize before leaving office. The DEA could rule on the motion as early as Monday unless the White House stops Bush holdover, Michele Leonhart, the DEA administrator. The DEA's Jan. 12 decision came nearly two years after the its own administrative law judge, Mary Ellen Bittner, ruled that approving the application would "be in the public's interest" and after years of delay on the part of the Bush administration. "On the first day of the new administration, White House Chief of Staff Rahm Emanuel issued a memo to departments and agencies directing them to hold off on issuing final regulations until President Obama's appointees have a chance to review them," said Aaron Houston, MPP director of government relations. "We're just asking for the same thing here. We'd like a fair hearing from new leadership at the DEA." With more than 26,000 members and 100,000 e-mail subscribers nationwide, the Marijuana Policy Project is the largest marijuana policy reform organization in the United States. MPP believes that the best way to minimize the harm associated with marijuana is to regulate marijuana in a manner similar to alcohol. For more information, please visit www.MarijuanaPolicy.org. ####

Obama Appoints Temporary Drug Czar

Amidst the inauguration fanfare, we failed to notice that Obama immediately appointed ONDCP’s general counsel Ed Jurith to serve as acting director, i.e. drug czar. You can read Jurith’s bio here and my thoughts on him here.

This is interesting because it’s a definite improvement over Bush’s last minute appointment of Patrick Ward, another ONDCP insider, to run the office upon John Walters’s departure. Jurith is hardly a friend of reform on any issue I’m aware of, but his background is in law, while Ward has been directly and heavily involved in interdiction programs.

With Jurith being the preferable choice, I’m wondering if Obama actually did this for the right reasons as he looks for a permanent candidate to fill the position. That’s impossible to say, but it’s a small step in the right direction. Let’s hope for a bigger one soon.

Obama and Medical Marijuana

You Can Make a Difference

 

 

Dear friends,

Less than two days. That's how long it took ex-President Bush's cronies inside the federal government to strike out at President Obama and use taxpayer money to undermine him.

Last Thursday the DEA raided a medical marijuana dispensary in California, putting the lives of cancer, HIV/AIDS and other patients at risk.

But we can show President Obama that the American people will stand with him in this fight and hold him accountable for his campaign promise to end these raids.

As you may know, President Obama promised to end the Bush administration's cruel and costly raids on medical marijuana patients and caregivers in states where marijuana is legal for medical use. He's in the process of replacing Bush officials who are the source of the problem, but that takes time.

Quite frankly, what the Bush loyalists inside the DEA did in South Lake Tahoe is the equivalent of giving President Obama the finger. 

Now is our chance to urge President Obama to protect at-risk patients. If he doesn't stand up forcefully to Bush's cronies, they will continue to undermine his presidency. And terminally ill patients will suffer.

Sincerely,

Bill Piper
Director, Office of National Affairs
Drug Policy Alliance

Location: 
CA
United States

Bush holdovers raid medical marijuana dispensary

Dear friends:

Yesterday — with the leadership of the Department of Justice in flux while Attorney General-designate Eric Holder awaits confirmation by the Senate — Bush administration holdovers raided a medical marijuana dispensary in South Lake Tahoe, California.

President Obama vowed repeatedly during his campaign to stop such raids if elected, and we have every reason to believe he will make good on that promise. However, four top positions at the DEA are still filled by Bush cronies, who are attempting to undercut the president's pledge.

Would you please take one minute to use MPP’s easy online system to e-mail the president and ask him to get his new leadership in place at the DEA quickly, so that these cruel and outdated policies finally end? 

President Obama has promised that arresting patients and raiding clinics in states where medical marijuana is legal won't be acceptable on his watch. Getting political appointees in place takes time, but yesterday the Bush holdovers showed that we must move swiftly.

Please write the White House today to urge the president to quickly place his new leaders at the DEA.

You can see some of the statements the president has made about medical marijuana (generally in response to questions from MPP) here.

Please send your e-mail right away. (You can also call the White House at 202-456-1111.)

Thank you,

Kampia signature (e-mail sized)

Rob Kampia
Executive Director
Marijuana Policy Project
Washington, D.C.

P.S. As I've mentioned in previous alerts, a major philanthropist has committed to match the first $2.35 million that MPP can raise from the rest of the planet in 2009. This means that your donation today will be doubled.

Location: 
South Lake Tahoe, CA
United States

Press Release: First Medical Marijuana Raid by DEA under Obama Administration Advocates call on president Obama to quickly change harmful, outdated policy

[Courtesy of Americans for Safe Access] For Immediate Release: January 22, 2009 Contact: ASA Media Liaison Kris Hermes at 510-681-6361 First Medical Marijuana Raid by DEA under Obama Administration Advocates call on president Obama to quickly change harmful, outdated policy Oakland, CA -- The Drug Enforcement Administration (DEA) raided a medical marijuana dispensary today in South Lake Tahoe, California, in the first days of the new Obama Administration. Even though President Barack Obama had made repeated promises during his election campaign to end federal raids in medical marijuana states, many high-ranking Bush Administration officials have yet to leave office. For example, still at the helm of the DEA is acting Administrator Michele Leonhart, who has been responsible for numerous federal raids in California, following in the footsteps of her predecessor Karen Tandy. Neither Eric Holder, President Obama's pick for U.S. Attorney General, nor a new DEA Administrator, have taken office yet. "Whether or not this unconscionable raid on a medical marijuana provider is the fault of federal officials from the previous administration, President Obama has an opportunity to change this harmful and outdated policy," said Caren Woodson, Director of Government Affairs for Americans for Safe Access (ASA). "We are hopeful that these are the last remnants of the Bush regime and that President Obama will quickly develop a more compassionate policy toward our most vulnerable citizens." Medical marijuana and an unknown amount of cash was seized during the raid today from Holistic Solutions, but no arrests were made. This first DEA raid under the new Obama Administration is another example of more than 100 raids on medical marijuana providers that have occurred in California over the past two years. While the greatest federal enforcement has occurred in California, the DEA has been active in other states as well. Federal agents raided the Washington State offices of a medical marijuana advocacy group that was supplying starter plants to hundreds of authorized patients. In Oregon, a federal grand jury was used by the DEA to obtain the medical records of several patients, an effort that was later rejected by a federal court. The DEA also went as far as to threaten New Mexico officials for planning to implement that states medical marijuana distribution program. "I would not have the Justice Department prosecuting and raiding medical marijuana users," Senator Obama said in an August 2007 statement. "It's not a good use of our resources," he continued. This statement was followed up by Obama in other public events in the run up to the election. "President Obama must rise to the occasion by quickly correcting this problem and by keeping the promise he made to the voters of this country," said Woodson. ASA has been working with the new Administration on changing federal law around medical marijuana, which has included providing a comprehensive set of policy recommendations. Further information: Comments by Obama on ending medical marijuana raids: http://granitestaters.com/candidates/barack_obama.html ASA medical marijuana recommendations for incoming president Barack Obama: http://AmericansForSafeAccess.org/PresidentialRecommendations # # #
Location: 
South Lake Tahoe, CA
United States

The White House: Obama on Drug Policy

The incoming Obama administration has posted its agenda online at the White House web site Whitehouse.gov. While neither drug policy nor criminal justice merited its own category in the Obama agenda, several of the broad categories listed do contain references to drug and crime policy and provide a strong indication of the administration's proclivities.

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But before getting into what the agenda mentions, it's worth noting what the agenda does not mention: marijuana. There is not a word about the nation's most widely used illicit drug or the nearly 900,000 arrests a year generated by marijuana prohibition. Nor, despite Obama campaign pledges, is there a word about medical marijuana or ending the DEA raids on providers in California -- which doesn't necessarily mean he will go back on his word. It could well be that the issue is seen as too marginal to be included in the broad agenda for national change. With the first raid on a medical marijuana clinic during the Obama administration hitting this very week, reformers are anxiously hoping it is only the work of Bush holdovers and not a signal about the future.

Reformers may find themselves pleased with some Obama positions, but they will be less happy with others. The Obama administration wants to reduce inequities in the criminal justice system, but it also taking thoroughly conventional positions on other drug policy issues.

But let's let them speak for themselves. Here are the relevant sections of the Obama agenda:

Under Civil Rights:

  • End Racial Profiling: President Obama and Vice President Biden will ban racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.
  • Reduce Crime Recidivism by Providing Ex-Offender Support: President Obama and Vice President Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.
  • Eliminate Sentencing Disparities: President Obama and Vice President Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.
  • Expand Use of Drug Courts: President Obama and Vice President Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.
  • Promote AIDS Prevention: In the first year of his presidency, President Obama will develop and begin to implement a comprehensive national HIV/AIDS strategy that includes all federal agencies. The strategy will be designed to reduce HIV infections, increase access to care and reduce HIV-related health disparities. The President will support common sense approaches including age-appropriate sex education that includes information about contraception, combating infection within our prison population through education and contraception, and distributing contraceptives through our public health system. The President also supports lifting the federal ban on needle exchange, which could dramatically reduce rates of infection among drug users. President Obama has also been willing to confront the stigma -- too often tied to homophobia -- that continues to surround HIV/AIDS.

Under Foreign Policy:

  • Afghanistan: Obama and Biden will refocus American resources on the greatest threat to our security -- the resurgence of al Qaeda and the Taliban in Afghanistan and Pakistan. They will increase our troop levels in Afghanistan, press our allies in NATO to do the same, and dedicate more resources to revitalize Afghanistan's economic development. Obama and Biden will demand the Afghan government do more, including cracking down on corruption and the illicit opium trade.

Under Rural Issues:

  • Combat Methamphetamine: Continue the fight to rid our communities of meth and offer support to help addicts heal.

Under Urban Issues:

  • Support Local Law Enforcement: President Obama and Vice President Biden are committed to fully funding the COPS program to put 50,000 police officers on the street and help address police brutality and accountability issues in local communities. Obama and Biden also support efforts to encourage young people to enter the law enforcement profession, so that our local police departments are not understaffed because of a dearth of qualified applicants.
  • Reduce Crime Recidivism by Providing Ex-Offender Supports: America is facing an incarceration and post-incarceration crisis in urban communities. Obama and Biden will create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership, and work to reform correctional systems to break down barriers for ex-offenders to find employment.

Search and Seizure: Supreme Court to Hear Case of School Girl Strip-Searched for Ibuprofen

The US Supreme Court agreed last Friday to review the case of a 13-year-old honor student who was subjected to a strip search by school officials looking for prescription-strength Ibuprofen. In doing so, it will once again revisit the contentious topic of just how far school officials can go in performing anti-drug searches that would be considered unconstitutional if conducted outside the school setting.

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US Supreme Court
The case had its genesis in the 2003 search of then 8th-grade honor student Savana Redding after another student who had been found with Ibuprofen pills in violation of school policy said Redding had given her the pills. Redding denied having provided any pills. School officials searched Redding's locker and belongings and found nothing. They then made Redding strip to her bra and underwear and ordered her, in the words of the appeal court, "to pull her bra out to the side and shake it" and "pull out her underwear at the crotch and shake it." No pills were found.

Redding's mother filed a lawsuit challenging the strip search as unconstitutional and seeking damages from the school district. A trial judge dismissed the lawsuit against school officials, ruling that they were immune from suit. A three-judge panel of the US 9th Circuit Court of Appeals agreed, but was overturned in a 6-5 vote by the full court, which ruled that the suit could go forward against the assistant principal who ordered the search.

The 9th Circuit majority was scathing in its opinion. "It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. "More than that: it is a violation of any known principle of human dignity."

But in his dissent, Judge Michael Daly Hawkins said that while the case was "a close call" given the "humiliation and degradation" endured by Redding, school officials were "not unreasonable" in ordering the search. "I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students. I would find this search constitutional," he wrote, "and would certainly forgive the Safford officials' mistake as reasonable."

Now, the Supreme Court must decide two questions: "Whether the Fourth Amendment prohibits school officials from conducting a search of a student suspected of possessing and distributing prescription drugs, and whether the 9th Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit for conducting a search of a student."

The case is Redding v. Safford Unified School District #1, or, as it is now known with the school district appealing, Safford Unified School District v. Redding.

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