Federal Courts

RSS Feed for this category

Supreme Court Betrays Free Speech...

... and thereby betrays the country. Bad (inexcusable) ruling in the Bong Hits 4 Jesus case.
United States

Student Free-Speech Rights Limited

Washington, DC
United States
Forbes.com (NY)

High Court Bolsters Sentencing Guidelines

United States
Christian Science Monitor

Search and Seizure: Supreme Court Rules Passengers Can Challenge Police Stops

In a unanimous decision, the US Supreme Court held Monday that passengers in a car stopped by police have the same right to challenge the constitutionality of that stop as the driver. The court held that when police stop a vehicle, the passengers are "seized" and have the right to challenge the legality of that seizure in court.

The ruling came in the case of California resident Bruce Edward Brendlin, who was arrested on parole violation and drug charges after the car in which he was riding was pulled over for what turned out to be bogus reasons by police. Once police had stopped the vehicle, they ordered Brendlin out of the car, searched him, the driver, and the vehicle, and found a syringe cap, a small amount of marijuana, and ingredients used to home cook methamphetamine.

While the driver of the vehicle did not challenge the constitutionality of the traffic stop, Brendlin did. He filed a motion to suppress the evidence against him, arguing that the traffic stop amounted to "an unlawful seizure of his person."

A California appeals court agreed, but the California Supreme Court overturned the appeals court decision. Instead, the California high court agreed with the state that even though police "had no adequate justification" to stop the vehicle in which Brendlin was riding, only the driver -- not any passengers -- had been "seized." Passengers in a vehicle stopped by police "would feel free to depart or otherwise to conduct his or her affairs as though the police were not present," the court reasoned.

But the US Supreme Court begged to differ. Any "reasonable passenger" would not feel free to simply leave the scene of a traffic stop, wrote Justice David Souter in the opinion in Brendlin v. California. "A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver," Souder wrote. "Brendlin was seized from the moment [the driver's] car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest."

To find in favor of California's position that passengers are not "seized" during a traffic stop "would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal," Souter wrote. "The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of 'roving patrols' that would still violate the driver's Fourth Amendment right."

Feature: North Dakota Farmers Sue DEA Over Hemp Growing Ban

Two North Dakota farmers Monday filed a lawsuit in federal court in Bismarck seeking to overturn the US Drug Enforcement Administration (DEA) ban on growing industrial hemp in the United States. The lawsuit seeks a court order barring the DEA from charging the farmers with a criminal violation of the Controlled Substances Act (CSA).

hemp being harvested (courtesy Wikipedia)
Hemp products are legal in the US, but the DEA ban prevents US farmers from growing it, meaning domestic hemp product makers must turn to suppliers in countries where it is legal to grow, including Canada, China, and most of Europe.

Hemp is a member of the cannabis family, but unlike the marijuana consumed by recreational and medical marijuana users, contains only tiny amounts of the psychoactive substance that gets marijuana users "high." But the DEA argues that hemp is marijuana and that the CSA gives it authority to ban it.

The farmers and their attorneys disagree, pointing out that the CSA contains language explicitly exempting hemp fiber, seed oil, and seed incapable of germination from the definition of "marihuana" and are thus not controlled substances under that law. That same language was used to allow the legal import of hemp into the US as a result of a 2004 federal court decision siding with the hemp industry against the DEA.

But while the language of the CSA appears clear, ambiguities remain, said Adam Eidinger, a spokesman for the hemp industry lobby group Vote Hemp. "There is a contradiction in the law when it comes to growing the plant, because you can't grow the plant without producing seeds and flowers, and the DEA claims the act gives it authority over those parts of the plant," he told Drug War Chronicle. "In this case, we have to look at Congress's intent in passing the law, and we think it is clear that Congress intended that hemp be excluded," he said.

WWII-era federal film encouraging hemp growing for war effort
Monday's lawsuit is only the latest move in a decade-old struggle by North Dakota farmers to grow hemp. The state first passed hemp legislation in 1997, but things really began moving when state Agriculture Commissioner Roger Johnson, a strong hemp supporter, issued the first state permits to grow hemp to farmers Wayne Hauge and Dave Monson (who is also a Republican state legislator) on February 6. One week later, Hauge and Monson sent a request to the DEA requesting licenses to grow their crops and noting that they needed a response by early April in order to get the crops in the ground this year.

The DEA failed to respond in a timely fashion. According to a March 27 DEA letter to Ag Commissioner Johnson, seven weeks was not enough time for the agency to arrive at a ruling on the request. That letter was the final straw for the North Dakotans.

"We are asking the DEA to do nothing, which is exactly what they have done for ten years," said Tim Purdon, one of the attorneys working for Monson and Hauge, at a Monday press conference announcing the lawsuit. "North Dakota's rules no longer require a DEA license, so we are basically asking the court to tell the DEA to leave our farmers alone."

"I applied for my North Dakota state license in January and was hopeful that the DEA would act quickly and affirm my right to plant industrial hemp this year. Unfortunately, the DEA has not responded in any way other than to state that it would take them a lot more time than the window of time I have to import seed and plant the crop," said Rep. Monson. "It appears that the DEA really doesn't want to work with anyone to resolve the issue," Monson added.

"I met with the DEA in February and presented copies of the licenses along with the applications from Hauge and Monson and the checks for the application fee and asked them to please review those applications as soon as possible," said Commissioner Johnson, who noted he had also met with the agency the previous year in an effort to smooth the way. "The DEA did not respond. It was a de facto denial of the applications, which led us to the point of filing this lawsuit," he said. "My strong opinion is that the DEA needs to get off this kick of viewing industrial hemp and marijuana as identical. They need to exercise their discretion to view them differently, like every other industrial country does."

In addition to its obstinate refusal to differentiate between hemp and marijuana, the DEA has also expressed concerns that lawmen would be unable to tell the difference between the two and that people would hide marijuana plants in the middle of hemp fields. That's all bunk, said California cannabis and hemp cultivation expert Chris Conrad.

"First off, this is not a problem for Canadian, British, German, French, and Spanish police, so why are American cops so incompetent compared to the rest of the world, and why should we coddle them for that rather than demand they do their jobs?" he asked. "Also, the fields are registered and police will have the power to enter and inspect at will, so it would be stupid to tell the cops where you're growing, then try to hide marijuana in the field," Conrad pointed out.

The two crops are grown differently for different ends, Conrad noted. "Marijuana is grown for flowering branches, whereas hemp is grown for either stalk or seeds. The stalk crop can be harvested before it flowers, so there would never, ever be any marijuana buds produced." Also, Conrad pointed out, hemp grows straight up and the plants are spaced only a few inches apart, while marijuana plants are shorter and bushier. "Marijuana plants look very different from hemp plants and would be conspicuous from the other plants, especially in an aerial flyover where you would see the area around the marijuana being cleared out from the hemp plants. It's very easy to identify a marijuana patch in a hemp field, and if there is a marijuana plant, it hempifies [is pollinated by the hemp plants] and goes away."

The science and agriculture of hemp probably have little to do with the DEA's intransigent insistence that hemp is marijuana, said Vote Hemp's Eidinger. "This is part of the culture war," he suggested. "When Jack Herer published "The Emperor Has No Clothes" in the early 1980s, the DEA began seeing the call for industrial hemp as part of weakening the links of the criminalization of marijuana." Publication of Herer's book led to a revitalization of interest in industrial hemp, but also associated hemp with the marijuana culture, rather than staid farmers like Hauge and Monson.

Regardless of the past, the state of North Dakota and its farmers are now tired of being collateral damage in the war on drugs, and now they have initiated the legal action that could resolve the issue once and for all.

Charges in khat case dropped

Seattle, WA
United States
The Seattle Times

A New Suit By Farmers Against the DEA Illustrates Why The War on Drugs Should Not Include a War on Hemp

United States
FindLaw (CA)

Good Supreme Court Ruling on Traffic Stops

The Supreme Court actually issued a good ruling on traffic stops today, and it was unanimous. In BRENDLIN v. CALIFORNIA, Bruce Brendlin, who was convicted of drug possession after a car in which he was a passenger was pulled over by a sheriff's deputy in Yuba County, California, appealed his conviction based on the fact that the traffic stop was later conceded by the state to be illegal. The state argued that because Brendlin was not the driver of the car, he was not the subject of the illegal stop, and so did not have the right to have the evidence suppressed because of the stop's illegality. In the unanimous opinion written by David Souter, the Court found:
Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to "terminate the encounter" between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission.
Sad that the California Supreme Court bought the argument, though. Read more about the case here.
Washington, DC
United States

Doctor or Drug Pusher?

United States
New York Times Magazine

Sentencing: Supreme Court to Decide Crack Sentencing Case

The US Supreme Court Monday agreed to hear the case of a Virginia man sentenced under the harsh federal crack cocaine laws. Coming after the high court has already agreed to hear two other cases related to federal sentencing, the decision will broaden its review of federal sentencing law by adding the notorious crack-powder cocaine sentencing disparity to it.

US Supreme Court
Under federal law, it takes five grams of crack or 500 grams of powder cocaine to trigger a mandatory minimum five-year prison sentence. Similarly, 10 grams of crack or 1,000 grams of powder cocaine merit a 10-year mandatory minimum. The 100:1 disparity in the amounts of the drug needed to trigger the mandatory minimum sentences has been the subject of numerous critics, including federal judges.

The case selected Monday was that of a Virginia man, Derrick Kimbrough, who pleaded guilty to two counts of possessing and distributing more than 50 grams of crack. Federal sentencing guidelines called for a sentencing range of 19 to 22 years, but Federal District Court Judge Raymond Jackson in Richmond pronounced such a sentence "ridiculous" and "clearly inappropriate," and sentenced Kimbrough to the lowest sentence he could, the mandatory minimum of 15 years.

But the US 4th Circuit Court of Appeals rejected Jackson's reasoning and ordered resentencing. "A sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses," the three-judge appeals court panel said.

Other federal appeals courts disagree. Both the Third Circuit in Philadelphia and the District Colombia Circuit Court of Appeals have held that, as the Philadelphia appeals court put it, "a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the guidelines." Both courts noted that the Supreme Court itself had made the federal sentencing guidelines advisory rather than mandatory in its 2005 ruling in Booker v. United States.

The other two federal sentencing cases the court has agreed to hear are also related to the confusion in the courts in the wake of Booker. One case, Rita v. United States, raises the question of whether a sentence within the guidelines range should be presumed reasonable. The second case, Gall v. United States, involved an Iowa college student given a sentence beneath the guidelines in an ecstasy case. The trial judge sentenced Gall to three years probation rather than three years in prison, but the US 8th Circuit Court of Appeals in St. Louis ordered resentencing, finding that such an "extraordinary" departure from the guidelines required "extraordinary" justification.

The Supreme Court will likely decide Rita in a few weeks, and will hear arguments in Gall in October. Kimbrough will carry over into the next term. But in the next few months, the Supreme Court will make decisions that will potentially affect the freedom of thousands of federal drug defendants each year.

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, 2015 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School