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Medical Marijuana Update

A California appeals court has made a landmark ruling, the DEA keeps on raiding, and a Montana medical marijuana provider refuses a post-conviction plea bargain, and those are just the top stories. Let's get to it:

Arizona

On Monday, it was revealed that a Mesa dispensary had been raided on October 5. Gilbert Police raided Arizona Natural Solutions, serving a search warrant and seizing "suspected marijuana, candy, cookies, powder, suspected ecstasy, and US currency." No information was offered about the reason for the raid. Three owner/employees are accusing of selling marijuana and "narcotics" (because Arizona state law defines marijuana products like hash as "narcotics").

California

Last Wednesday, a state appeals court threw out the conviction of a San Diego dispensary operator. In what Americans for Safe Access called a "landmark" decision, the 4th District Court of Appeal reversed the conviction of Jovan Jackson, convicted in September 2010 after being denied a defense in state court. The ruling also reversed the lower court's finding that Jackson was not entitled to a defense, providing the elements for such a defense in future jury trials. The ruling also recognized that collective members do not need to be actively involved in marijuana cultivation to access the marijuana they purchase.

Last Thursday, DEA agents arrested 12 people involved with Southern California dispensaries. Most of the dispensaries had been raided and closed in 2010 and 2011, but at least one was still operating. Charges against those arrested include failure to report taxable income, conspiracy to distribute marijuana and maintaining a drug location near schools.

Also last Thursday, the Santa Monica city council extended a 45-day moratorium on dispensaries. On a unanimous vote, the council voted to extend the moratorium for another 10 months. "This is about waiting for the Supreme Court to settle some law. At least I can hope, that with a little bit of time that the law will become clearer and every city's rights are better understood," said Mayor Richard Bloom.

Also last Thursday, the Napa city council told staff to prepare an ordinance banning outdoor grows. The move came after Police Chief Jackie Rubin told the council police had raided a property where 15-foot-tall marijuana plants were visible from a neighbor's yard.

Over the weekend, the California Medical Association addressed four marijuana resolutions. It rejected one (from a doctor who owns a winery!) to rescind the CMA policy in support of marijuana legalization, it passed one referring that policy to the American Medical Association, it passed another asking the governor to petition the DEA to reschedule marijuana, and it referred for further study one examining medical marijuana use in hospitals.

On Monday, the Los Angeles city clerk approved a petition to regulate dispensaries. Petitioners want to get on the May ballot; to do so, they must gather 41,138 valid signatures by December 7. The proposed initiative would bar new medical marijuana dispensaries, but allow those collectives that registered with the city as of Sept. 14, 2007 and meet other criteria, to continue operating. The ordinance would also establish operating standards, including mandatory annual police background checks and distances from schools, parks and other designated places.

Also on Monday, a state appeals court held that trial judges can ban the use of medical marijuana for some probationers. A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation. Leal was on probation for possessing marijuana for sale, and he argued the ban violated his right to use the substance under the state's Compassionate Use Act, which allows patients with a doctor's approval to use marijuana for medical purposes. But the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public," wrote Judge Andrew Kline. "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

On Tuesday, DEA agents raided the ASPC dispensary in San Bernadino. The agents "descended in force," making arrests and confiscating evidence from the store.

Montana

Last Thursday, Chris Williams rejected a post-conviction plea offer from federal prosecutors that would have cut his prison sentence from as much as 85 years to as little as 10 years. Williams was part of Montana Cannabis, whose other partners have all either been convicted or pleaded guilty to federal drug charges. He faced the decades-long sentence because four or his charges involved having a gun during the commission of a drug crime. Prosecutors offered to drop some charges if Williams dropped his appeals, but he refused. "I have decided to fight the federal government, because for me not defending the things that I know are right is dishonorable," Williams wrote. "Every citizen has a responsibility to fight for what is right, even if it seems like the struggle will be lost. It is the power of the people to control this government that is supposed to protect us. If we shun this struggle, this government will control us instead of protecting us."

On Monday, a state district court judge blocked the state from enforcing some provisions of its new medical marijuana law. District Judge Jim Reynolds said he will suspend enforcement of the law while evaluating its constitutionality. The suspended parts include the ban on medical marijuana providers receiving money for their product, and other provisions that advocates argue essentially shut the industry down. Voters in Montana will vote on throwing out the new, restrictive law next week.

Medical Marijuana Update

It's been a relatively quiet week on the medical marijuana front, with the big news being the DC Circuit Court's interest in determining whether Air Force vet Michael Krawitz has standing to challenge the federal government's refusal to reschedule marijuana. But that isn't all. Let's get to it:

National

On Monday, plaintiffs in the federal marijuana rescheduling case filed an additional brief at the court's request after it heard oral arguments last week. In the case Americans for Safe Access v. Drug Enforcement Administration, the DC Circuit issued an order last week seeking details on the harm sustained by plaintiff and disabled US Air Force veteran Michael Krawitz as a result of the federal government's policy on medical marijuana. The federal appeals court will use this additional briefing to decide whether the plaintiffs have legal "standing" to bring such a lawsuit against the government. The lawsuit argues that the government has acted arbitrarily and capriciously by keeping marijuana classified as a Schedule I substance, a dangerous drug with no medical value. By ignoring the overwhelming scientific evidence, ASA argues that the federal government has kept marijuana out of reach for millions of Americans who would otherwise benefit from its therapeutic value.

Arizona

Last Friday, a lawsuit against Maricopa County officials for refusing to process dispensary applications got underway. The White Mountain Health Center filed a lawsuit against Maricopa County after it refused to provide documentation and information required in order to obtain a dispensary permit under the voter approved 2010 Arizona Medical Marijuana Act. White Mountain was the first to apply for a dispensary permit under county jurisdiction, but Maricopa County DA Bill Montgomery opposes the Arizona Medical Marijuana Act because he says it would force public employees in Arizona to violate federal drug laws that prohibit the use, sale and cultivation of marijuana. Lawyers from the ACLU, who are representing White Mountain, argued that the state has the right to have a medical marijuana law, and that the federal government has not punished officials in any of the other 17 states where it is legal. The case continues.

California

Last Friday, San Francisco's first unionized dispensary opened. The Mission Organic Center applied for its permit more than three years ago, but had to navigate the permit process and overcome an appeal at City Hall before opening. Dispensary owner Eugene Popov has been paying rent on the storefront the whole time, as well as shelling out $10,000 in permit fees. The United Food and Commercial Workers Local 5 has supported the dispensary throughout the process and now has the union shop dispensary in the city.

Also last Friday, neighbors of a Berkeley dispensary threatened to sue the building owner if the dispensary does not stop "all illegal drug activities at the location" associated with the Perfect Plants Patient's Group. Residents complained of bags from the business in neighborhood yards, drug deals openly occurring on the street and kids loitering and smoking marijuana, all of which they attribute to the continued operation of the dispensary. The city is contemplating ordering the dispensary shut down, but the neighbors issued their lawsuit threats because they felt the city wasn’t moving fast enough. The dispensary is not on the city's list of permitted dispensaries.

On Wednesday, the San Francisco Weekly revealed that Mayor Ed Lee blocked a plan to let shuttered dispensaries operate on city property. The number of dispensaries in the city has shrunk from 30 to 20 under the federal onslaught, and city officials had bruited about the idea of letting some of them open on city property while they sought new locations. But Lee's office nixed the idea earlier this month, according to emails retrieved by the Weekly.

Late Wednesday afternoon, an alert went out on the San Diego Americans for Safe Access email list saying San Diego's only known dispensary, Next Generation on San Ysidro Boulevard, was being raided. The dispensary is "currently under attack and in full raid condition," the alert said.

Michigan

On Wednesday, a Big Rapids medical marijuana provider was sentenced to federal prison. John Clemens Marcinkewciz was a registered caregiver when he was arrested on state charges, which were then handed off to the feds. After the federal court ruled that he could not mention the state's medical marijuana law in his defense, he pleaded guilty to conspiracy and manufacture of 100 or more marijuana plants. While there was no word at press time what sentence he received, he was looking at at least a five-year mandatory minimum.

Oregon

Last week, Lane County authorities filed an asset forfeiture complaint against a dispensary they raided in August. They hit Kannabosm on August 30 and arrested the owner, Curtis Shimmin, on marijuana and money laundering charges. The store had been open for a year. Now, they want to seize $60,637 in cash, Shimmin's personal automobile, and an ATM machine that was at the business. Shimmin had argued that cash-for-marijuana transactions were not illegal under the Oregon Medical Marijuana Act because they were not technically sales, but compensation to growers for their expenses. Lane County begged to differ.

Medical Marijuana Update

The federal rescheduling petition got a day in court, the feds keep up the pressure in California, a dispensary may actually open in New Jersey, and those are just the headlines. There's much more going on, too. Let's get to it:

National

Last week, the National League of Cities adopted a resolution on medical marijuana. The resolution calls on the federal government "to consider a precise interpretation of the CSA to recognize and address whether the medicinal use of marijuana in prescribed circumstances is or is not in conflict with the CSA." The cities complained that they are wasting valuable resources trying to address the conflict between state laws allowing medical marijuana and the federal government's absolutist position.

On Tuesday, the DC Court of Appeals heard oral arguments on an appeal of the DEA's decision to reject the marijuana rescheduling petition. Click on the link to read our feature story on it.

Arizona

Last Friday, a medical marijuana patient sued the state after police seized her marijuana-infused oil. Charise Voss Arfa claims police wrongfully considered the oil labeled "Soccer Moms Tincture" a narcotic instead of marijuana. A tincture is typically an alcoholic extract of plant or animal material or solution. The lawsuit argues the statute defining cannabis is too vague and should not apply to medical-marijuana cardholders who legally participate in the state program. The lawsuit asks the courts to order police to return the oil; to ban police from arresting, prosecuting or taking property from medical-marijuana cardholders; and to declare the state's criminal statute related to cannabis void as it applies to medical-marijuana patients and caregivers.

California

Last Wednesday, the DEA and local police raided seven Long Beach dispensaries and arrested more than 40 people. The raid is just the latest, though possibly the largest, crackdown on medical marijuana in Long Beach since the city's ban went into full effect in August. The ban was a reaction by city officials to a court ruling that the city can't regulate the drug because it is illegal under federal law. City Hall had worked for two years to come up with a permitting system and regulations to control the number of collectives, and once that law was voided, the city council voted to ban medical marijuana rather than risk its unregulated proliferation throughout the city.

Last Friday, G3 Holistic dispensary owner Aaron Sandusky was convicted of federal marijuana charges by a jury that heard no mention of medical marijuana. Sandusky, who operated three Southern California dispensaries, was convicted on two charges, but the jury could not agree on four other counts. He is now looking at a mandatory minimum 10 years in federal prison, and up to a life sentence. Sandusky, who had been free on bail, was immediately jailed.

Also last Friday, Concord elected officials said they are considering an ordinance to restrict medical marijuana cultivation. The move comes after complaints from residents about smelly outdoor grows. "Perhaps looking at having the growth indoors instead of outdoors, that would take care of some of the major concerns we have," said Mayor Ron Leone.

Also last Friday, activists filed papers with the city of Los Angeles for a May referendum to regulate -- not ban -- dispensaries in the city. The Angelenos for Safe Access Committee needs to gather enough signatures to make the ballot. The proposed initiative would increase the city tax on dispensaries from 5% to 6% of revenues, require dispensaries to register with the city, require background checks for operators and employees, and require that dispensaries respect distance requirements from schools and churches. The move comes after the city council first banned dispensaries, then voted to un-ban them in the face of another, successful petition drive.

Also last Friday, the city of Covina took legal action to shut down a dispensary. The city attorney had sought and won a temporary restraining order to shut down the LPC Center, which had opened in the city during the summer, but the dispensary didn't shut its doors. The new complaint alleges that the dispensary operators lack a business license and that the dispensary is a public nuisance because it is in violation of the city's municipal code. There will be a hearing next week where a judge will consider granting Covina a preliminary injunction to force the cooperative to close. According to the complaint, "distributing marijuana, whether for medical purposes or otherwise, is not a permitted use" under Covina's municipal code.

Last Saturday, voters in Eagle Rock rejected most of the medical marijuana slate in neighborhood council elections. The neighborhood has been hit hard by police actions against dispensaries, with support from the neighborhood council. Dispensary operators and supporters had called on Los Angeles residents to vote in the neighborhood election in support of dispensaries, leading to charges of unfair election practices.

On Monday, DEA agents visited some LA dispensaries that had received federal threat letters in September. Agents visited up to 21 dispensaries, reminding them that they needed to shut down. "We do have a couple agents doing follow up," said DEA spokeswoman Sarah Pullen. "It's routine since these letters are going out. We wanted to determine the status of where these places are at." In late September, the DEA targeted 68 dispensaries with threat letters and raided three. The feds aim at wiping out dispensaries in Eagle Rock and downtown LA.

On Tuesday, DEA agents visited an Eagle Rock dispensary, prompting it to close its doors. The Together for Change dispensary had opened in May, after the American Eagle Collective, which operated at the same location, was raided and shut down by LAPD. Together for Change is one of the 68 dispensaries targeted by September federal threat letters.

Also on Tuesday, the Sacramento city council moved to prohibit outdoor marijuana grows. The council voted 8-1 to direct city staffers to draft an ordinance barring them. Council members said the grows were a magnet for crime and a nuisance to neighbors. The council also voted to keep in place existing location restrictions on medical marijuana dispensaries. Those restrictions prohibit the shops from operating within 1,000 feet of other dispensaries, 300 feet from residences and 600 feet from schools and parks. The city has a moratorium on new dispensaries following the federal crackdown, but allows 17 already existing dispensaries to operate.

Colorado

As of the end of July, the number of registered medical marijuana patients passed the 100,000 mark for the first time since September 2011. That's according to figures released last week by the state Department of Public Health and Environment. The number of patients had peaked at more than 128,000 people in June 2011 before shrinking over a five-month period to just over 80,000. The decline was variously attributed to increased dispensary regulations, a glut of medical marijuana available from growers, and the $90 fee for registering.

On Tuesday, Carbondale trustees narrowly rejected a dispensary application. They voted 4-3 to deny CMED a business permit, even though the dispensary has been open for two years. CMED owner Michael Weisser, who has been caught in a regulatory wringer the entire time, demanded to know whether the town was shutting him down and was told the trustees would let him know."You'd better do it quick, because I'm going to move immediately for an injunction against the board," Weisser replied.

Maine

Last Saturday, Maine police returned plants stolen from a medical marijuana grower in Ellsworth. Police initially hesitated to return the plants, citing concerns about violating federal law, but then relented. The grower said he was able to save only part of the crop.

Michigan

Last Thursday, the Michigan Supreme Court has heard oral arguments in a case that will help determine whether dispensaries can sell marijuana to patients who don't grow their own. The case involves a Mount Pleasant dispensary that allowed members to sell marijuana to each other. It was prosecuted by Isabella County authorities, and the conviction was upheld last year by a state appeals court.

New Jersey

On Monday, the Greenleaf Compassion Center in Montclair received state permission to open. It would be the first in the state, and the permission comes nearly three years after the Garden State approved medical marijuana.

On Wednesday, the Compassionate Care Foundation said it wouldn't open a dispensary until next year. The foundation, which plans to open a dispensary in Egg Harbor Township near Atlantic City, has faced delays because of the state's extensive background check process.

New Mexico

On Monday, advocates announced a campaign to keep PTSD as a qualifying condition for the state's medical marijuana program. PTSD is currently a qualifying condition, but its status is threatened by a request to remove it. Advocates aid more than 3,000 New Mexico residents with PTSD are enrolled in the state's program. The advocates, including the New Mexico Medical Cannabis Patients Alliance, the Drug Policy Alliance, and others are calling the campaign Don't Take Away Our Medicine. "We deserve access to effective medical treatments whether we’ve just come home from combat or we are suffering debilitating symptoms from other trauma," said Chris Hsu, NM Medical Cannabis Patient’s Alliance’s Vice President.

Rhode Island

On Monday, the Rhode Island Medical Society joined a lawsuit against the state health department over its recent decision to only allow physicians -- not nurse practitioners and physicians' assistants -- to sign medical marijuana applications. The state ACLU had sued last week on behalf of the Rhode Island Patient Advocacy Coalition, Rhode Island Academy of Physician Assistants and a Bristol patient. Applications signed by nurse practitioners and physician’s assistants had previously been accepted. The medical society said the new policy was arbitrary and that doctors needed to be able to delegate responsibilities to other medical professionals.

Marijuana Scheduling Case Heard By US Appeals Court [FEATURE]

The medical marijuana defense group Americans for Safe Access (ASA) and a number of individual plaintiffs took their case for the rescheduling of marijuana to the US Court of Appeals in the District of Columbia Tuesday. In oral arguments there, they urged the court to order the Drug Enforcement Agency (DEA) to reverse, or at least reconsider, its rejection of a decade-old petition seeking rescheduling.

Now, the battle over rescheduling has moved from DEA and HHS to the federal courts. (safeaccessnow.org)
Marijuana is Schedule I under the Controlled Substances Act, which means the government considers it to have no accepted medical use and a high potential for abuse. Other Schedule I drugs include heroin, ecstasy, and LSD. ASA is arguing that it should be down-scheduled, past Schedule II, which includes cocaine, methamphetamine and other amphetamines, and powerful opioid pain relievers (Oxycontin, morphine, Fentanyl), to Schedule III, which includes less harmful substances, such as steroids, less-powerful opioid pain relievers (hydrocodone, paregoric), and Marinol, or synthetic THC.

Medical marijuana advocates have thrice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; the second was finally rejected after seven years, and it took the agency a decade to reject the most recent one. In the intervening period, 17 states and the District of Columbia have moved to allow for the medical use of marijuana.

The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)

In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana's benefits, and so acted "arbitrarily and capriciously" in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers' access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.

"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told the three-judge panel.

Despite the federal government's obstructionism, Elford was able to cite over 200 studies of marijuana's medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.

Elford accused the government of "bias" in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way "the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium," he told the court.

But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.

"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," Watkins argued.

Marijuana is scary stuff, she told the court. The plant has "adverse physical and psychological consequences" and has been "implicated in hundreds of thousands of hospital visits," Wilkins said.

Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a "marijuana-related" emergency room visit. Additionally, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.

"Marijuana is the most widely abused drug in America," Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.

The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the second petition--from 1995--that the DEA refused to reschedule, the court never addressed the core issues of the case, instead throwing it out because petitioner Jon Gettman, a marijuana researcher and former national NORML executive director, could not demonstrate direct harm from the government's actions.

This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.

"That seems pretty straightforward," said Judge Harry Edwards.

But the DEA's Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.

At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.

"The real question is to what extent we have to defer to the agency," said Judge Harry Edwards.

"Don't we have to defer to their judgment?" asked Judge Merrick Garland. "We're not scientists. They are."

The pair of judges said they would not overturn the DEA's decision unless they found it to be "arbitrary and capricious." But that, of course, is precisely what Alford and the plaintiffs argued it is.

The appeals court will not hand down its decision for some months.

Washington, DC
United States

Medical Marijuana Update

The big news this week is that Oakland is suing the feds over their efforts to shut down Harborside. Meanwhile, the battles continue at the state and local level in California and beyond.

California

Last Monday, Citizens for Patient Rights handed in signatures in La Mesa for an initiative to allow and regulate dispensaries. They handed in more than 6,500 signatures; the San Diego County Registrar of Voters has 30 days to verify the successful submission of the 3,034 valid signatures needed in order to qualify.

Also on Monday, medical marijuana proponents rallied at an Obama campaign stop in San Francisco. Upset with the administration's campaign of repression aimed at dispensaries, they demanded that the administration freeze all actions being taken against medical cannabis providers and review their records of state and local compliance.

On Tuesday, the Los Angeles city council took its final vote to repeal the "gentle ban" on dispensaries. The council was forced to vote because medical marijuana advocates had gathered enough signatures to place a referendum on a city ballot asking voters to overturn the soft ban. The city council had to either repeal the ban on its own, or allow the question to go to the voters. Placing the question on the ballot for the upcoming election would have cost taxpayers up to $3 million at a time when the budget shortfall has forced reductions in core city services.

Also on Tuesday, the founder of G3 Holistic chain of three dispensaries went on trial in federal court for violating federal drug laws. Aaron Sandusky faces six felony counts. The feds accuse him of operating a for-profit business under cover of Proposition 215, but his attorney said he was running a perfectly legal business under state law and his cause is being championed by Americans for Safe Access. His trial is expected to last through the week.

Also on Tuesday, the Santa Monica city council approved a 45-day moratorium on new dispensary permits. City staffers called dispensaries a "risk to the public peace, health and safety" and will use the moratorium to come up with options for dealing with them. It could be extended for up to 22 months. Some city council members accused staff of Reefer Madness-style fear-mongering.

Also on Tuesday, the Clovis city council rejected a ban on medical marijuana grows. The city bans dispensaries but allows patients to grow their own indoors. The updated ordinance limits the size of gardens and requires them to be out of public view. The council rejected an outright ban after City Attorney David Wolfe said it would be costly to defend in court and hamper police efforts to control cultivation.

Also on Tuesday, an appeals court upheld Temecula's ban on dispensaries.  The Fourth District Court of Appeal ruled yesterday on the ordinance banning medical marijuana dispensaries from operating within the city. The panel ruled, 2-1, that the city may use its zoning powers to absolutely ban the dispensing of the drug, and that such regulation is not preempted by Proposition 215, the statewide initiative permitting the use of marijuana upon a doctor’s recommendation, or the Medical Marijuana Program Act that regulates the distribution of the drug for medical purposes. The case was City of Temecula v. Cooperative Patients Services, Inc.

Also on Tuesday, the Arroyo Grande city council voted to ban medical marijuana delivery services. It was the second vote by the council in as many weeks to do so, but some residents are vowing a fight-back.

On Wednesday, the city of Oakland filed a lawsuit to block the feds from closing the Harborside dispensary. Oakland took in $1 million in tax revenues from Harborside last year, but the city said it wasn't about the money, but about federal interference in the city-permitted business. "The federal government has acted beyond its authority by initiating the forfeiture action outside of the statute of limitations," said Cedric Chao, the attorney representing Oakland. "Moreover, the government has indicated for many years by its words and actions that so long as dispensaries and medical patients acted consistently with state law, the dispensaries would be allowed to operate. Oakland has reasonably relied on these assurances, and the government should be prohibited from disrupting Oakland's medical cannabis program."

New Jersey

Last Thursday, a state court panel upheld Health Department rules limiting the number of medical marijuana dispensaries and requirements that they all be run by nonprofits. Natural Medical, Inc., a for-profit company formed to open a dispensary had sued, arguing that the department had unlawfully limited the number of dispensaries to six. Nearly three years after former Gov. Jon Corzine (D) signed the state's medical marijuana law, no dispensaries are yet up and running. "Appellants simply have not shown that the Department acted unreasonably in limiting the initial issuance of ATC [dispensary] permits to the statutory minimum," the unsigned unanimous opinion said. "Beyond the mandated minimum, the Department has discretion to determine how many ATCs are needed to meet the demand for medical marijuana."

New Mexico

Last Friday, it was reported that half of the people using medical marijuana in the state are suffering from PTSD. The report comes as the Medical Cannabis Advisory Board reviews a petition from a psychiatrist to remove PTSD from the list of disorders that can be treated with marijuana. The board will conduct its review November 7, with the decision ultimately in the hands of the interim health secretary.

Rhode Island

On Monday, the ACLU said it will sue over a revision of the state's medical marijuana program that it says makes it more difficult for patients to obtain their medicine. While the ACLU was mum on the particulars, it appears it will challenge a decision this summer by the Department of Health to only accept patient applications signed by physicians. It had previously accepted applications signed by physician's assistants or nurse practitioners, as well.

Vermont

Last Thursday, the Rutland city council voted to ban dispensaries. The state has approved four medical marijuana dispensaries around Vermont, but also allows towns to opt out. The move came after Police Chief James Baker told aldermen last week that dispensaries had become crime magnets in other states. The measure passed without any debate.

Medical Marijuana Update

Mitt Romney (mis)speaks out on medical marijuana, the LA dispensary ban is repealed, and the feds keep on grinding away at medical marijuana providers with another conviction in Montana and a lengthy prison sentence in Michigan. And that's just for starters. Let's get to it:

National

On Monday, GOP presidential candidate Mitt Romney weighed in on marijuana policy. Asked by the Denver Post what he thought about Colorado's medical marijuana industry, Romney responded, "I oppose marijuana being used for recreational purposes and I believe the federal law should prohibit the recreational use of marijuana." Later the same day, his campaign clarified to the Washington Post that "Governor Romney has a long record of opposing the use of marijuana for any reason. He opposes legalizing drugs, including marijuana for medicinal purposes. He will fully enforce the nation's drug laws, and he will oppose any attempts at legalization."

Arizona

Last Thursday, the state ACLU joined a lawsuit supporting the Arizona Medical Marijuana Act. The lawsuit, filed by White Mountain Health Center, seeks to compel county and state officials to move forward with the dispensary permitting process. Maricopa County Attorney Bill Montgomery has refused to issue the documentation to any proposed dispensaries in Maricopa County because he claims the law is preempted by the federal Controlled Substances Act. The lawsuit lists Montgomery, Maricopa County, and the state Health Department and its director, Will Humble, as defendants. A hearing is set for October 19.

California

On Tuesday, the LA city council voted to repeal its recent ban on dispensaries. The 11-2 vote came after activists gathered enough signatures to put a referendum repealing the ban to a direct vote. Rather than hold a March election that could give an okay to dispensaries, the council is counting on federal enforcement to accomplish what it hoped to achieve with its ban. "That is our relief," Councilman Jose Huizar said of the DEA raids and threat letters to dispensaries that began last week.

Last Tuesday, the DEA raided an Anaheim dispensary, the Live Love Collective, seizing two kilos of dried marijuana, 75 kilos of marijuana-laced edibles, 900 grams of hash and a kilo of marijuana gel, according to DEA officials. The shop had been warned by the feds that it was violating federal law in November 2011 and was also among 128 dispensaries issued "cease and desist" orders by the city of Anaheim.

Connecticut

On Monday, the state's medical marijuana law went into effect. Doctors will now be able to go online at the Department of Consumer Protection and begin the registration application for qualifying patients. This is the first step in the fledgling program; the agency has until  July 1 to submit new regulations to the General Assembly on how it will be dispensed.

Michigan

On Monday, the Ann Arbor city council postponed action on amending its licensing ordinance. The suggested amendments including removing language suggesting involvement in regulating the industry by city staff, setting a cap of 20 on dispensaries in the city, and licensing 10 dispensaries. The council has steadfastly failed to move on the ordinance revisions since they were proposed at its January meeting, and they could die if not acted on within the next six months.

Also on Monday, a Monroe County caregiver was sentenced to 10 years in federal prison. Gerald Duval Jr. and his son Jeremy had been raided by the DEA and charged with federal marijuana cultivation and trafficking offenses. They were convicted after a trial in which Michigan's medical marijuana law, with which they were in compliance, could not be mentioned. Jeremy Duval was set to be sentenced Tuesday, but there is no word yet on his sentence.  Americans for Safe Access called the Duvals' case "another tragedy from President Obama's war on medical marijuana."

Montana

Last Wednesday, the Montana Cannabis Association asked the state Supreme Court to reconsider its September ruling that a ban on marijuana sales does not violate the constitutional rights of registered users or providers. The ruling overturned a lower court decision to block part of lawmakers' restrictive rewrite of state regulations, and sent the case back to District Court with new instructions. The association argued that a new state law should be held to a higher standard of review. The Supreme Court decision is in abeyance until the justices address the motion and formally send the case back to the lower court.

Last Thursday, a medical marijuana provider was found guilty in federal court of multiple federal charges, including conspiracy to manufacture, possess and distribute marijuana and firearms charges. Chris Williams was the greenhouse operator for Montana Cannabis, where DEA agents seized 950 plants in one of the March 2011 raids that swept the state, decimating its nascent medical marijuana industry. As per usual, he wasn't permitted to argue that he followed state laws regulating medical marijuana.  He said he would appeal. One of his partners in Montana Cannabis, Tom Daubert, recently received a probationary sentence after pleading guilty, but another set of partners, the Flor family, weren't so fortunate. They all got prison sentences, and 68-year-old Richard Flor died in federal prison earlier this summer.

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Medical Marijuana Update

The DEA strikes again in Los Angeles, and the feds are moving to eliminate dispensaries in downtown LA. But the pushback against the crackdown continues. Let's get to it:

California

Last Thursday, demonstrators gathered outside Obama campaign headquarters in Sacramento to protest the crackdown on medical marijuana dispensaries. The demonstration was part of a series of protests at Obama campaign headquarters across the nation sponsored by Americans for Safe Access.

Also last Thursday, the two candidates for LA County DA said they would continue to go after  dispensaries. The remarks by Chief Deputy District Attorney Jackie Lacey and Deputy District Attorney Alan Jackson differed came as the two engaged in their last public debate. Responding to a question from moderator Gene Maddaus of the LA Weekly both took roughly the same line. "It's my position that over-the-counter sales for money of marijuana are illegal," Lacey said. "Those folks are simple drug dealers," Jackson said.

Last Saturday, the Trinity County Sheriff's Office reported it had raided six medical marijuana grows, saying they were all illegal commercial grows hiding behind Proposition 215. The raids resulted in 14 arrests for cultivating and preparing marijuana for sale, and deputies seized $180,000 in cash, 406 plants, and 150 pounds of processed marijuana. The sheriff's office said the amount was far in excess of the personal use amounts for the 14 people, but acknowledged that some of them said they were members of cooperatives.

On Monday, initiative campaigns in San Diego County announced they had scored big endorsements in their bid to allow and regulate dispensaries in Lemon Grove, Del Mar and Solana Beach (Propositions T, H and W, respectively). The endorsements include the San Diego County Democratic Party, the San Diego County Libertarian Party and the San Diego County Green Party.

On Tuesday, the feds targeted 71 Los Angeles dispensaries, with the DEA raiding three.  Federal prosecutors filed asset forfeiture lawsuits against three properties housing dispensaries and sent threat letters to 68 other dispensaries. The feds are targeting every known dispensary in the Eagle Rock and downtown areas of the city, as well as the single store known to be operating in Huntington Park. The federal actions in Los Angeles were done with cooperation from the Los Angeles Police Department, the Los Angeles District Attorney's Office, and the Los Angeles City Attorney's Office. The three dispensaries hit by the DEA with help from the LAPD were the Happy Ending Collective, the Green Light Pharmacy, and Fountain of Wellbeing. Federal enforcement actions -- the asset forfeiture lawsuits and warning letters -- have now targeted more than 375 dispensaries in the Central District of California.

On Wednesday, the feds joined up with local law enforcement in Santa Rosa to swarm a southwest neighborhood in what was described as the region's largest ever mass residential grow bust. Participants included personnel from the Sonoma County Sheriff’s Office, Probation Department and District Attorney’s Office, Santa Rosa Police Department, California Highway Patrol and federal departments of Homeland Security and Immigration and Customs Enforcement. A sheriff's spokesman said the operation was planned after authorities discovered that suspected pot cultivation in the neighborhood had become rampant. "We just looked into this neighborhood and, literally, probably every backyard but two or three have a (marijuana) grow," O'Leary said. "Our goal is to go in there to rid the neighborhood of these, what we think are probably illegal grows."

Michigan

Last Wednesday, a federal appeals court upheld the firing of a Walmart worker who was terminated after testing positive for marijuana even though he was a registered patient. Joseph Casias, who has an inoperable brain tumor, was fired by the Walmart store in Battle Creek after failing the drug test. He sued, but the case was thrown out in district court. The appeals court upheld the ruling of the lower court that the state's medical marijuana law does not regulate private employment, but merely provides protection from criminal prosecution or other adverse state action.

Montana

Last Friday, a federal judge hamstrung the defense of medical marijuana provider Chris Williams, a co-owner of the now-defunct Montana Cannabis. US District Court Judge Dana Christensen held that Williams cannot argue that government officials entrapped him into believing he would not be prosecuted and warned jurors that they must "disregard any statements or argument about the defendant or others purporting to comply or not to comply with state laws concerning marijuana." Williams is the only one of the people charged after a series of March 11 raids to go to trial. One of his partners in Montana Cannabis, Richard Flor, died in federal prison last month, while another, Tom Daubert, was sentenced to probation. The trial was still going on as of Tuesday night.

On Tuesday, federal prosecutors' thresholds for prosecution were revealed. Cases involving less than 500 plants or 100 kilograms will be "disfavored for prosecution in federal court," according to a July memorandum from Montana US Attorney Michael Cotter that was obtained and published by The Independent. In their March 2011 raids, the feds in several instances targeted grows that contained fewer plants than that.

Washington

Last Thursday, protestors in Seattle denounced the federal crackdown on dispensaries there, holding a city hall news conference before rallying at the federal courthouse. In August, the DEA sent threat letters to 26 local dispensaries it said operated within 1,000 feet of a school zone, threatening forfeiture if the businesses didn't shut down within 30 days. The protest was one of a series called across the country by Americans for Safe Access.

Medical Marijuana Update

Last issue, we reported that the DEA had taken the week off. Well, they're back, and so is the push-back. Let's get to it:

National

Last Thursday, the Women's CannaBusiness Network held a press conference in Washington, DC, to call on President Obama to cease enforcement actions against medical cannabis providers while the administration reviews its policies to determine whether they are in the public interest. The group is a project of the National Cannabis Industry Association.

On Monday, Americans for Safe Access called for Thursday demonstrations at Obama campaign headquarters across the country "in an effort to draw attention to the Obama Administration's aggressive efforts to shut down legal medical marijuana dispensaries and obstruct the passage of laws that would regulate such activity." Demos are set for Washington, DC, as well as in the states of Arizona, California, Colorado, Montana, Missouri, New Mexico, Oregon, and Washington.

California

Last Wednesday, the DEA raided Green Heart Collective facilities in Anderson and Redding. "They broke all the windows, vandalized the inside of the building and took all of the medicine," owner Gina Munday said. "We were so surprised." No arrests have been made so far.

Also last Wednesday, the Encinitas city council approved a dispensary initiative for the 2014 ballot. Initiative backers the Patient Care Association had signatures verified by the registrar of voters on August 8, two days before the state deadline for the 2012 ballot, but the council would have had to have called a special meeting to place it on the ballot. It failed to do so.

Last Thursday, Harborside Health Center asked a federal judge to stop its landlord from trying to shut it down. Harborside and its landlords have been hit with threat letters from federal prosecutors, and its San Jose landlord had moved to force it out. But Harborside is fighting everything to do with the federal threats.

Last Friday, Vallejo police raided Nature's Love Collective for the second time. They arrested the operator, just as they did four months ago, the last time they raided it. Vallejo police have raided  nine dispensaries this year despite the city voting to tax and regulate them.

On Monday, an initiative to overturn the LA dispensary ban qualified for the ballot.  City Clerk June Lagmay said activists needed 27,425 valid signatures for their measure to qualify and that a statistical sampling of the signatures showed they had turned in 110% of the amount needed. The city council can now repeal its "gentle ban" ordinance, call a special election, or put the measure on the March 5 city election ballot. In the meantime, the ban is on hold, although LAPD has said it intends to continue busting dispensaries.

Oregon

On Tuesday, the DEA raided the High Hopes Farm grow operation outside Jacksonville. James Bowman, a longtime activist, owns the farm and went public about his activities last spring with a spread in the Oregonian newspaper. Bowman could be the single largest medical marijuana producer in the state. He wasn't arrested, but agents plowed under his crop.

Vermont

As of Sunday, the Vermont Department of Safety has granted conditional approval to two dispensary applicants. One applicant, the Champlain Valley Dispensary, has been approved for Burlington and hopes to be open and serving patients within six months. A second applicant, Patients First Inc., has been approved for Waterbury. The department received five applications this year, but three of them did not meet minimum standards. Under a 2011 law, the state can have four dispensaries and will accept more applications next year if that number isn't reached this year.

Chronicle Film Review: Lynching Charlie Lynch

Lynching Charlie LynchA Film by Rick Ray (2012, Rick Rays Films, 1:40, $29.95 DVD)

Of all the various fronts of the war on drugs, the assault on medical marijuana patients and providers may not be the stupidest -- that distinction probably belongs to the ban on hemp farming -- but it is arguably the cruelest. No fair-minded observer can doubt that marijuana soothes many maladies, and there is an ever-increasing mountain of peer-reviewed scientific and medical research to back that up.

And no one can listen to the testimonials of patients suffering serious ailments about the relief they've found with marijuana without empathizing with their all-too-real suffering. My personal experience is only anecdotal, but I've been meeting bona fide patients for years now, people with multiple sclerosis, people undergoing chemotherapy, people debilitated by agonizing migraine headaches -- all of whom swear by the weed.

Sure, California's medical marijuana allows virtually anyone with $75 and the ability to say "chronic pain" to get a medical recommendation, and many people who arguably suffer no real infirmity take advantage of that, but the fact that some people are using medical marijuana recommendations as a "get out of jail free" card certainly does not negate the reality of marijuana's therapeutic value--it's just one more hypocritical artifact of prohibition.

But it's been nearly 16 years since voters in California passed Proposition 215, starting a social and political phenomenon that has now spread across the country, and the federal government remains intransigent. At times aided and abetted by recalcitrant local sheriffs, prosecutors, and other elected officials, the Justice Department right now is busily putting the screws to California's dispensaries. They've managed to run more than 400 of them out of business in the past year by the exercise of federal muscle: DEA raids, threats of federal criminal prosecution -- sometimes carried out -- and threats of asset forfeiture directed at dispensary landlords.

It seems so dry when you just type the words out on the page, but what we are talking about is the destroying of people's lives by their own government, a war waged against citizens by the people who are supposed to be serving them. Imagine what a DEA SWAT team raid is like, as a nonviolent dispensary operator who's targeted -- and that can be just the beginning. Then they take all your possessions, your computers, your bank accounts, leaving you penniless, probably car-less, possibly homeless -- if you're lucky. If you're not, you're then staring into the maw of the federal criminal prosecution machine, a particularly Kafkaesque prospect when it comes to federal medical marijuana prosecutions, where dispensary operators become "drug dealers" in trials where the words "medical marijuana" are not to be spoken.

Charlie Lynch's sad saga begins a few years earlier, back when George W. Bush was still president, but his tale is all too familiar by now. In his powerfully rendered Lynching Charlie Lynch, award-winning filmmaker, writer, and producer Rick Ray manages to illuminate the human reality (and the inhuman idiocy) of the war on medical marijuana distributors. As many Chronicle readers no doubt recall, Lynch operated the Central Coast Compassion Center in Morro Bay, California, until he was raided, arrested, and convicted on federal marijuana trafficking charges in federal court.

Through interviews with Lynch, his neighbors, his landlord, and local attorneys and politicians, interspersed with TV news accounts and surveillance videos, Ray portrays a socially awkward straight arrow of a man, whose most serious offense before his run-in with Uncle Sam was a speeding ticket (which his mother explains he got expunged by taking a defensive driving course). Lynch found his way to medical marijuana not out of any affinity for the weed or because he hung in stoner milieus (he didn't), but because he heard it might help with his excruciating migraine headaches (it did).

Lynch subsequently tired of driving miles to the nearest dispensary and decided he was interested in opening one in San Luis Obispo County, where he lived. The fastidious Lynch researched the laws, even asking the DEA what its policy on medical marijuana dispensaries was -- it was up to state and local law enforcement, they told him. He filled out his forms, got his business license, rented a property, and had a ribbon-cutting with the Chamber of Commerce in attendance. He had the support of the mayor and other town officials. He was operating within the mandates of state law. He thought he was doing everything right.

None of that mattered to Sheriff Pat Hedges, who like too many in law enforcement who cannot accept laws they don't believe in, and tried fruitlessly for a year to find some way to bring Lynch down. His deputies surveilled the premises, they followed workers and patients from the dispensary, they tried unsuccessfully to set up undercover buys, but they couldn't come up with enough evidence of any violation of state law to get a judge to sign a search warrant.

Then, in a betrayal of his community and out of a sense of frustration that he was unable to nail Lynch, Hedges sicced the feds on him. Hedges' deputies joined forces with DEA agents to raid the Compassion Center and Lynch's residence, where he was shoved to the floor naked with a rifle pointed to his head.

Lynching Charlie Lynch tells the story of his transformation from respected local businessman to convicted federal drug dealer, the sleazy legal machinations of the federal prosecutors turning his prosecution and trial into a sordid charade, a mockery of justice. But his story is bigger than one man. It is also a story about a healing plant and about a nation that can't seem to come to grips with it, a nation that somehow thinks it's justifiable or even sane to persecute people for growing plants for others.

Along the way, Rick Ray takes a few side-trips that only add to the documentary. He talks to University of California at San Francisco researcher Dr. Donald Abrams about how he recommends marijuana for a wide variety of ailments and he talks to Professor Lyle Craker, the Massachusetts plant scientist who has sought -- so far unsuccessfully -- permission from the DEA to grow marijuana for the purpose of conducting clinical trials of its medical efficacy. The stolid, white-haired researcher offers up a powerful indictment of a corrupted federal research process.

Ray also talks to some representatives of the other side, and I want to thank him for giving folks like California anti-drug activist Paul Chabot, anti-marijuana fanatic Dr. Eric Voth and the Partnership for a Drug-Free America's David Evans the opportunity to display their character with their own words. When confronted with Lynch's fate, the smarmy, sanctimonious Chabot, a self-described "Christian" who says there are no legitimate medical marijuana dispensaries, said that he would pray for him "and maybe he will come to terms with what he did and join our side some day."

Similarly, Evans does his best to appear to be a thoughtful, rational human being, but gives himself away when he goes on a rant about the dangers of growing pot."They endanger others by setting up these facilities when there is no proof there," the former prosecutor muttered darkly. "He could have harmed people, killed people, caused cancer, caused birth defects. If someone chooses to put other people at risk, they should be prepared to take the consequences."

Uh, we're talking about growing a plant here.

Charlie Lynch's story isn't over yet, although he's already lost most everything. One of the last scenes of the film shows him putting his remaining belongings into storage after his house went into foreclosure in the wake of his prosecution. And he is still waiting to find out if he will have to go to federal prison. He's already been sentenced, but is appealing.

Lynch may be appealing, but what happened to him at the hands of his own government is appalling. Rick Ray deserves major credit for bringing his compelling story to the screen with grace, tenderness, and just the right touch of righteous indignation.

ACLU Fighting Decision in Cell Phone Tracking Case [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

The American Civil Liberties is challenging a federal appeals court ruling that it is legal for the DEA and other law enforcement agencies to track GPS-equipped cell phones without a warrant. The group has filed an amicus brief urging the full 6th US Circuit Court of Appeals to reconsider the ruling of a three-judge panel last month in US v. Skinner, with ACLU attorney Catherine Crump warning that "the Sixth Circuit ruling in August in Melvin Skinner's case undermined the privacy rights of everyone who carries a cell phone."

Melvin Skinner was suspected of being part of a massive marijuana trafficking organization. Without getting a warrant or showing probable cause, the DEA forced Skinner's cell phone company to provide them with his GPS coordinates continuously as they tracked him cross-country for three days. Using that data, they tracked him down in Texas, searched his mobile home, found 1,100 pounds of marijuana, and arrested him on drug charges. Skinner was convicted and then appealed, arguing that the GPS tracking of his cell phone without a warrant violated his Fourth Amendment rights.

"There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his 'pay-as-you-go' cell phone, the kind of phone called 'burners' that drug dealers often use for business and quickly dispose of," Judge John Rogers wrote in the majority opinion in Skinner. "If a tool is used to transport contraband and it gives off a signal that can be tracked, certainly the police can track the signal." 

A well-known tool of the trade for those in the drug underworld, 'burners' were also popularized by the HBO show The Wire, which hyped the notoriety of the prepaid phones in its series.

Legal experts say if the Sixth Circuit decision stands it would severely undercut the US Supreme Court decision this past January in the case of accused drug dealer Antoine Jones. In US v. Jones, the Supreme Court issued a historic decision prohibiting law enforcement from tracking vehicles with GPS device without first obtaining a search warrant -- a tactic the feds used against Jones case when the FBI and DEA installed a GPS device on his SUV for 28 days.

Jones' life sentence without parole was reversed and he was remanded for retrial scheduled in 2013. The chilling effect of the Supreme Court ruling in the Jones case forced the FBI to pull the plug on 3,000 GPS tracking systems that had been secretly installed on vehicles across the nation.

"While the Jones case imposes constitutional restrictions on law enforcement to track vehicles with warrantless GPS devices, the Sixth Circuit has now held that agents can engage in even more intrusive surveillance of cell phones without implicating the Fourth Amendment at all," the ACLU noted in its brief to the court.

In their efforts to overturn Skinner's lengthy prison sentence, his attorneys argued that the use of the GPS location information in the cell phone that led to his arrest violated the Fourth Amendment prohibition against warrantless searches and seizures. The primary question in the case was whether Skinner had a "reasonable expectation" of privacy in the data that his cell phone emitted.

The Sixth Circuit ruling comes exactly a month after a Congressional inquiry discovered how law enforcement made over 1.3 million requests for cell phone data last year, seeking subscriber information, text messages, location data and calling records. If upheld, it would be a major boost for government surveillance power as state and federal prosecutors shift their focus to warrantless cell-towers to ferret out cell phone data and track the GPS signals in cell phones without a warrant in a bid to get out from under the Supreme Court's ruling in that police cannot use warrantless GPS to track vehicles.

Lawyers and law enforcement officials agree there are too many conflicts over what information the police are entitled to legally get from wireless cell carriers.

"It's terribly confusing, and understandably so, when federal courts can't agree," cell phone industry attorney Michael Sussman told the New York Times earlier this year. The companies "push back" often when confronted with "urgent" requests for cell phone data, he said. "Not every emergency is an emergency."

US 6th Circuit Court of Appeals Judge John Rogers (wikimedia.org)
Without a doubt, cell phone data and GPS signals in cell phones are hot commodities in the surveillance business. Business is booming for wireless carriers who sell customers data and cell phone locations to police either by the hour or for one big fee.(See our May story on the practice and the legal challenges to it here.)

But law enforcement is especially well-placed to take advantage of the data. With a simple judge's order, it can easily obtain reams of data and the GPS location of a target's cell phone without a warrant.

As the Times noted, tracking GPS signals in cell phones has become such a tempting technique that the Iowa City Police Department had to issue a stern warning to officers: "Do not mention to the public or the media about the use of cell technology or equipment used to locate targeted subjects and its use should be kept out of police reports."

Similarly, a 2010 training manual written by California prosecutors informed investigators on "how to get the good stuff" using technology. Another police training manual describes cell phones as "the virtual biographer of our daily activities," providing a hunting ground for learning contacts and travels.

The easy availability of cell phone data could spell big trouble for accused drug dealer Antoine Jones as he prepares for retrial next year. This time around, the feds will not use GPS evidence from his vehicle because the Supreme Court prohibited that in his case last year, but it plans to use Jones' cell phone data and the GPS signal in his phone as evidence to connect him with numerous kilos of cocaine.

On September 4, the Obama administration, citing a 1976 Supreme Court precedent, told the federal judge in Jones case that such data, like banking records, and cell phone records, are "third-party records," which means customers have no right to keep it private.

Jones' attorney, Eduardo Balarezo, disagreed. "The government seeks to do with cell site data what it cannot do with the suppressed GPS data that's already been ruled illegal by the Supreme Court," he argued in his brief in the case.

Jones, who is still behind bars despite his victory at the Supreme Court because the government insists on retrying him, is steadfast.

"I am going to fight this all the way to the end," he told the Chronicle.

Aside from the Fourth Amendment implications of the Skinner decision, the case raises another question: Did the courts misinterpret the arcane federal laws governing electronic surveillance?

Jennifer Granick, director for civil liberties, the Stanford Law School Center for the Internet and Society
A Stanford University attorney who is an expert on the legalities now says even the trial court erroneously applied the wrong "trap and trace" statute in denying to suppress the evidence the DEA used to obtain a court order to track the GPS signal in Skinner's phone.

"It was basically the government's "hybrid theory" of what constituted a legal trace of the phone and the court intrepreted the wrong statute," Jennifer Granick told the Chronicle. "The tracking order the DEA used to track Mr. Skinner's phone was not applied correctly under the statute. Pinging a phone in real time is governed by the Pen Register/Trap and Trace statute. To get a trap and trace order, the government usually needs an order under [the relevant] section."

But as Granick has argued in federal criminal defense seminars, the Communications Assistance for Enforcement Act (CALEA) prohibits use of the pen register authorization to obtain subscriber location information."So, the feds should have gotten a warrant under [a different] rule for this information, but clearly did not," Granick concluded.

The confusion is around whether to apply the Pen Register statute or the Stored Communications Act (SCA). The SCA was used by the judge to authorize the trace on Skinner's phone. Under SCA, police cannot receive the contents of the electronic communication, but, police are allowed to find out "where whom said what."

The advantage for law enforcement, prosecutors and judges in such matters is the fact they often use this reasoning to obtain location data that can easily turn a cell phone into a tracking device without a warrant -- whereas legal experts say it should require a much higher threshold -- like a probable cause warrant.

Granick was surprised to learn the court relied on the SCA instead of the other relevant laws.

"You mean the court authorized real time tracking based on the Stored Communications Act, without even a reference to the Pen Register statute or CALEA?" she asked incredulously. "Well, it's not right, but that's what the court did."

Restrained by the Supreme Court from using warrantless GPS tracking by the Jones case, federal law enforcement and local police are making greater use of cell phone data to track suspects. Whether that is constitutional is still an open question. Federal courts are splitting on the issue of whether the collection of cell phone data and the warrantless tracking information of the GPS signal in a phone is legal. That means the issue is likely headed for the Supreme Court for final resolution.

Meanwhile, it looks like Skinner may have yet another issue to raise on appeal.

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