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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.

Montana's First Caregiver for Medical Marijuana Dies in Prison

The first person to register as a caregiver under Montana's now gutted medical marijuana program has died in federal prison. Richard Flor, 68, died at a Bureau of Prisons facility outside Las Vegas last Wednesday just a few months into a five-year federal prison sentence.

Flor, his wife, Sherry, and his son, Justin, operated a caregiver business from their home and at a Billings dispensary. Flor was also the co-owner of Montana Cannabis, one of the state's largest medical marijuana providers until it was raided by the DEA as part of the massive raids in March 2011.

Although there were no allegations of Flor or his family violating state laws, they could not escape the wrath of the federal government. All three were found guilty of drug-related charges and were sentenced to prison terms. Sherry Flor got two years for keeping the books and tending plants, while Justin Flor got five years for running the Billings dispensary.

US District Court Judge Charles Lovell sentenced Flor to years in federal prison despite testimony that he was suffering from a variety of illnesses, including dementia, diabetes, hepatitis C, and osteoporosis. Lovell did recommend that Flor "be designated for incarceration at a federal medical center" where his "numerous physical and mental diseases and conditions can be evaluated and treated."

That didn't happen, according to the Billings Gazette two days after Flor died. Although he had been taken into the custody of US Marshals in May, he spent all but the final days of his life at a private correctional facility in Shelby, Montana, while the federal Bureau of Prisons decided where to place him.The Las Vegas federal facility where he died was a transfer center, not his final destination at a BOP medical facilty, which he never knew or reached.

Flor died after a pair of massive heart attacks, according to his daughter.

Three other founding members of Montana Cannabis also face long prison sentences, including activist and political consultant Tom Daubert, who helped run the initiative campaign that brought medical marijuana to the state via the popular vote. At least a dozen other Montana medical marijuana providers have also been convicted on federal drug charges.

As the DEA was busily decimating the state's burgeoning medical marijuana industry in 2011, Republican lawmakers were also moving to destroy it, and largely succeeded, passing legislation that all but gutted it. But medical marijuana proponents are fighting back. They have qualified the Montana Medical Marijuana Initiative, I-124, for the November ballot. It would repeal the bill passed by the legislature last year.

Las Vegas, NV
United States

Medical Marijuana Update

The battle of Los Angeles continues, Arizona prosecutors don't like their medical marijuana law, and a bill is pre-filed in Kentucky. There's also lots more going on. Let's get to it:

Arizona

Last Thursday, state and county prosecutors challenged the medical marijuana program in court. Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery asked a court hearing a dispensary application case to rule that the voter-approved law is illegal because it conflicts with federal drug laws. The Republican prosecutors are specifically targeting the dispensary provisions of the law, but argued in court that all aspects of the state law violate federal drug laws. In the case at hand, a would-be Maricopa County dispensary is suing the county because officials wouldn't provide zoning clearances required under the law. The officials had been advised by Montgomery that county employees could face prosecution for aiding and abetting drug crimes.

Arkansas

As predicted last week, Arkansas state officials announced that a medical marijuana initiative has qualified for the ballot. The Arkansas Medical Marijuana Act would allow patients suffering from specified diseases or medical conditions to use marijuana with a doctor's recommendation. It envisions a system of state-licensed nonprofit dispensaries, and would allow patients or their caregivers to grow their own only if they are not within five miles of a dispensary. In that case, patients could grow up to six flowering plants. Patients could possess up to 2 ½ ounces of marijuana.

California

Last Wednesday, Los Angeles asked the DEA to help it shut down dispensaries. The request came from Councilman Bernard Parks, who filed a successful motion with the council. Parks is a former LA police chief. The council recently voted to close down all dispensaries in the city, although that is likely not the end of the affair (see below).

Also last Wednesday, a judge in Riverside ruled that the city can't ban a dispensary. Riverside County Superior Court Judge John Vineyard dissolved an injunction to shut down a dispensary in the city, agreeing that current law makes local government closures of the clinics unconstitutional. The decision affects The Closet Patient Care dispensary on Elizabeth Street in Riverside, but could be a precedent for other cases in the city. The city immediately said it would appeal the ruling.

Also last Wednesday, a Costa Mesa collective filed suit against the city over its ban on dispensaries. The Green Health Association argues that the city cannot legally ban nonprofit collectives and says it is operating with the state attorney general's guidelines. 

Also last Wednesday, the city of Chowchilla banned public medical marijuana use. It passed an ordinance limiting smoking or any other type of medical marijuana consumption to inside a private residence and requiring all cultivation to take place in an enclosed, locked area.

Also last Wednesday, the California Supreme Court dismissed Pack vs. Long Beach, a case that could have decided whether cities can lawfully regulate medical marijuana. The court held the case was moot after the attorney for the petitioners abandoned his original argument that Long Beach's short-lived rules to allow and regulate medical marijuana violated federal law. The state Supreme Court is still considering several other cases that will determine the power of cities to ban collectives or dispensaries.

On Tuesday, word spread that the Berkeley Patients Group would reopen in a new location. The iconic dispensary had been forced to close in May after federal prosecutors threatened its landlord with seizure of his property. The new location is just four blocks from its original location on San Pablo Avenue. No opening date has been set at the new site and officials from Berkeley Patients Group refused to go on record about their plans.

Also on Tuesday, Butte County's effort to ban outdoor grows hit a bump in the road. Butte County District Attorney Mike Ramsey surprised supervisors by announcing the ordinance was unconstitutional as written. The ordinance envisioned charging violators with a misdemeanor, but the prosecutor said that was the domain of state law, not county ordinances. Now, it's back to the drawing board for the supervisors.

Also on Tuesday, the Wheatland city council banned dispensaries within the city limits. It passed two ordinances, one banning dispensaries and the other barring outdoor grows within the city limits and setting conditions on indoor ones.

On Wednesday, activists in Los Angeles turned in more than 50,000 signatures on petitions seeking a referendum to overturn the city council's recently-passed ban on dispensaries. The city now has 30 days to either rescind the ban or to call a special election to let the voters decide. That could come in March or May.

Kentucky


On Monday, state Sen. Perry Clark (D-Louisville) pre-filed a medical marijuana bill for the 2013 session. He said he wanted to get a head start on building support in the legislature.

Montana

On Tuesday, the co-founder of Montana Cannabis agreed to plead guilty to a federal drug charge related to 2011 raids on dispensaries across the state. Chris Lindsay faces up to 20 years in federal prison for conspiracy to operate a drug-involved premises. Lindsay said he copped to the plea agreement to avoid other pending charges and because earlier court rulings made it clear he would not be able to testify about his belief that Montana Cannabis was in compliance with the state’s law. Lindsay is also the public face of the Montana Cannabis Industry Association, which has filed a lawsuit to block portions of the law rewritten by the Republican legislature and which is backing a referendum asking voters to repeal the law. That referendum will be on the November ballot.

Oregon

On Sunday, activists said they would try to get PTSD added to the medical marijuana list of qualifying conditions. Two previous efforts have failed. This time, the push is being led by veteran's groups. Oregon is home to some 300,000 veterans.

Washington

Last Thursday, the DEA sent threat letters to 23 dispensaries operating near schools. In the letters to the dispensaries, DEA Special Agent-In-Charge Matthew Barnes contended the dispensaries could face the seizure and forfeiture of assets, as well as criminal prosecution. The letter informs dispensary operators and property owners to cease the sale and distribution of marijuana within 30 days.

Woman Walks After Prosecutorial Perfidy in Tucson [FEATURE]

Special to the Chronicle by Houston-based investigative journalist Clarence Walker, who can be reached at cwalkerinvestigate@gmail.com. This article is the latest in his continuing series on prosecutorial misconduct in the war on drugs.

Aurora Lopez-Avila is back home in Mexico. A mother of three, she struggles daily to rebuild a shattered life that once hung in the balance -- after sitting for more than two years in a Tucson, Arizona, federal jail facing charges that she attempted to transport 10 kilos of cocaine across the Arizona-Mexico border on December 8, 2009.

Acting on a tip, customs inspectors searched her Dodge Stratus and turned up the cocaine, neatly packaged in the back seat. She was charged with trafficking more than five kilos of cocaine and faced up to life in prison.

But Lopez-Avila was freed this past May -- after Tucson-based federal Circuit Court Judge Cindy Jorgenson dismissed the drug charges because of blatant prosecutorial misconduct by Assistant US Attorney Jerry Albert during her trial last November.

Albert attempted to mislead the jury into convicting her by presenting a "falsified version" of questions that a federal magistrate judge had earlier asked Lopez-Avila, when she had originally pleaded guilty. The key question was whether she had been threatened to make her take the drugs across, but Albert instead made it seem as if the question was whether she had been threatened to make her plead guilty.

Informed of Albert's intentional act to undermine justice, Jorgenson declared a mistrial. And now a federal appeals court has demanded that Albert be investigated. It's another example of a "win at all costs" mentality that has infected federal prosecutors' offices across the land.

It went down like this:

In an effort to employ a duress defense, Lopez-Avila claimed during her trial that she had been forced to transport the drugs. To discredit her claim, Albert, a veteran narcotics prosecutor, attempted to show that her testimony contradicted what she said during an earlier magistrate's hearing. The court's written opinion showed that Albert intentionally presented to the court and counsel an altered version of the prior hearing's colloquy, making it seem as if the defendant had said that she had never been forced to smuggle the drugs she was charged with.

The 9th US Circuit of Appeals, which has jurisdiction over Arizona, was so angered over Albert's twisting the words of another judge that it has called for an investigation by the US Justice Department.

"In eight years as US Attorney and 26 years on the trial bench, this is the worst I've ever seen from an Assistant US Attorney," 9th Circuit Judge Donald Walter told the Arizona Star, adding that he was even surprised to hear that Albert was still working as a federal prosecutor.

Lopez-Avila first pleaded guilty in a bid to win a sentencing reduction, but later withdrew her plea.

Tucson defense attorney Mark Williman uncovered prosecutorial misconduct and saved his client from years in prison.
"In this case," her defense attorney, Tucson-based Mark Williman, explained, "Ms. Lopez-Avila was motivated to remain quiet about the duress because she believed there was a woman in jail with her would tell her 'handler' about her tipping off the government. And as a result, Lopez-Avila feared her family would be harmed."

When the federal probation officer tasked with conducting her pre-sentence investigation asked Lopez-Avila why she committed the offense and how much money she would receive, she suddenly broke down, sobbing uncontrollably. That's when she told the investigator and her attorney the truth of being coerced to transport the drugs. Speaking in Spanish, aided by translator, Lopez-Avila confessed she was "forced to drive the vehicle across the border and that she would make $1,500 for her misdeeds," Willimann explained.

Then she made a startling admission. "I thought I was carrying diet pills," Lopez-Avila told the officer and her attorney.

Assistant US Attorney Albert "got desperate thinking the government could lose the case because their own agent told the jury there was 'no evidence' that Ms. Lopez-Avila actually knew she had cocaine in the vehicle," Williman said. That assertion was made plausible by Lopez-Avila's statement that she actually thought she was carrying diet pills. While carrying diet pills across the border is also a crime, it is not the crime of cocaine trafficking.

To convince the jury to find Lopez-Avila "not guilty" due to being forced to commit the crime, Willimann had no choice but to have her testify in her own behalf to the fear she felt if she didn't comply with the mob boss order.

"My client previously pleaded guilty to the charges before Magistrate Judge Jennifer Zipps but subsequently she changed her plea to 'not guilty' and went to trial, Willimann explained.

She had an incentive to plead guilty early on. Under a provision of the federal sentencing guidelines known as "Acceptance of Responsibility," there is a benefit for defendants to admit guilt to prevent the government from wasting resources preparing for trial.

"When Ms. Lopez-Avila first pleaded without a plea agreement, we were vying for the extra level reduction under the provision, which is why I encouraged her to plead quickly," Williman explained. "At trial, Ms. Lopez-Avila's defense was the fact she was coerced by a drug boss to bring the drugs across the border and if she had not complied, her family would have been hurt."

If a jury had believed Lopez-Avila had been coerced, it was duty bound to follow the law and find her not guilty under the law of "duress." But to make sure he would undercut Lopez-Avila's "duress" defense, prosecutor Albert engaged in prosecutorial misconduct by violating the law to the point of "omitting the words" of the magistrate to undercut her testimony and convict her.

Albert's chosen tactic was the creative editing of the federal magistrate's earlier questioning. Reading from an altered transcript to carry out the "win at all cost" scheme, Albert asked Lopez-Avila if she remembered testifying at an earlier hearing. As Albert quoted the exchange of dialogue between Lopez-Avila and the magistrate, the magistrate asked, "Has anyone threatened you?"

"No," replied Lopez-Avila.

Reminding Lopez-Avila she had said she had not been threatened, Albert then turned to her and asked, "When you testified before the magistrate that you were not threatened in this case.... was that a lie?"

"Yes," said Lopez-Avila.

What Albert was attempting to do was to demonstrate to the jury that Lopez-Avila had lied on the stand when she testified she had been threatened into smuggling the drugs because her exchange with the magistrate when she originally pleaded guilty showed that she had not been threatened by drug traffickers.

But Alberts' creative editing of the magistrate's questioning and Lopez-Avila's answers misrepresented what had actually been said. What the magistrate had actually asked was, "Has anyone threatened you or forced you to plead guilty?"

"No," she replied.

http://www.stopthedrugwar.org/files/judge-cindy-jorgenson-200px.jpg
Judge Jorgenson (wikimedia.org)
Alberts thought he had managed to pull a fast one on the defense and the court and delivered a crushing blow to Lopez-Avila's credibility, but he didn't count on defense attorney Willimann's tenacity. When Willimann re-read the transcript of the magistrate's hearing, he notified Judge Jorgenson of the "omitted words" spoken by the magistrate. Jorgenson read Albert's written version, then she read the actual correct version and agreed the prosecutor tried to mislead the court and the jury to deny Lopez-Avila a fair trial. But Jorgenson denied Willimann's request to dismiss the case based because of Albert's prosecutorial misconduct.

Instead, Jorgenson found that a mistrial had occurred. "The court cannot cure the error by giving a jury instruction and I hereby grant the defense request to declare a mistrial," Jorgenson announced.

Willimann appealed Jorgenson's denial of his motion to dismiss the case against his client. Documented in the appeal was the prosecutor's illegal conduct surrounding Lopez-Avila's duress defense during trial.

In their brief to the 9th Circuit, Albert's colleagues conceded that his misquoting of the magistrate's words "had been intentional but claimed that the reading had been a fair one." But the judges on the panel weren't buying it.

"It is hard to see how a prosecutor could interpret a magistrate's question, 'Has anyone threatened you or forced you to plead guilty?' to mean 'Has anyone threatened you to commit this offense?" wrote Judge Carlos Bea.

Nor was the conservative jurist pleased with the revelation that the Southern Arizona US Attorney's Office was trying to make the "Albert affair" go away by requesting that the 9th Circuit remove Albert's name from their published opinion that criticized his unethical conduct.

"The effort by the Justice Department to conceal the name of its prosecutor, was in sharp contrast in announcing  the accomplishments of its prosecutors in public," Bea noted. "The move reaffirmed the view of many lawyers that the Justice Department often acts reflexively in defense of its lawyers... and often resists efforts to hold abusive prosecutors accountable."

With the charges of prosecutorial misconduct deepening, Judge Jorgenson dismissed the charges against Lopez-Avila in May and issued a stinging rebuke not only to Albert, but to the entire Southern Arizona US Attorney's Office.

"This case is not simply about the mistake of one Assistant US Attorney, but rather the prosecuting office as a whole," Jorgenson wrote.

"I'm so grateful. Thank you very much," a jubilant Lopez-Avila told Williman in Spanish when the decision was issued before returning home to Mexico after her sojourn in the US criminal justice system.

Lopez-Avila was caught smuggling drugs. Her claim that she only did it because she was threatened by drug traffickers may or may not be true. We will never know because the case never made it to a verdict. The case never made it to a verdict because Assistant US Attorney Jerry Albert was so desperate for a win that he was willing to subvert the cause of justice.

The cogs of federal justice continue to grind in Tucson. The drug war provides plenty of fodder. And Jerry Albert remains on the job, at least for now -- the Justice Department's Office of Professional Responsibility is investigating.

Tucson, AZ
United States

Medical Marijuana Rescheduling Lawsuit Moving

A decade after the Coalition for Rescheduling Cannabis (CRC) filed its petition seeking to have marijuana moved from Schedule I of the Controlled Substances Act, the federal courts will finally review the scientific evidence regarding the therapeutic efficacy of marijuana. The DC Circuit Court of Appeals announced late last week that it will hear oral arguments in October in a lawsuit filed by Americans for Safe Access (ASA) to force the government to act.

The lawsuit, Americans for Safe Access vs. DEA, was filed in January after the DEA denied the CRC's rescheduling petition the previous July. The DEA took nine years to decide to do nothing about rescheduling marijuana.

Under the Controlled Substances Act, Schedule I is reserved for drugs that "have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision."

Patient advocates charge the DEA and other federal agencies have ignored an increasing mountain of evidence on marijuana's therapeutic efficacy and that marijuana is "currently accepted [for] medical use in treatment" in 17 states and the District of Columbia. They also charge that the rescheduling process for marijuana has been "encumbered by politics" and that federal agencies are throwing roadblocks in the way of scientific research on medical marijuana.

"Medical marijuana patients are finally getting their day in court," said ASA chief counsel Joe Elford. "This is a rare opportunity for patients to confront politically motivated decision-making with scientific evidence of marijuana's medical efficacy. What's at stake in this case is nothing less than our country's scientific integrity and the imminent needs of millions of patients."

Oral arguments will take place Tuesday, October 16, at 9:30am at the E. Barrett Prettyman US Courthouse in downtown Washington.

Washington, DC
United States

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