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The Week Online with DRCNet
(renamed "Drug War Chronicle" effective issue #300, August 2003)

Issue #85, 4/2/99

"Raising Awareness of the Consequences of Drug Prohibition"

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TABLE OF CONTENTS

  1. Portland, Oregon Police Called to Account for Surveillance Operation
  2. Two New Polls Show Strong Public Support for Drug Policy Reform
  3. Courts Place Limits on Drug Testing in Workplace, Schools
  4. Hash Bash Draws Ire of State Lawmakers
  5. California Democrats Give Nod to Industrial Hemp
  6. Government Reports: Prison, Drug Use Trends
  7. ACLU: Financial Privacy Update
  8. EDITORIAL: Funding The Unknown Soldier

1. Portland, Oregon Police Called to Account for Surveillance Operation

A county circuit judge in Portland, Oregon, has ordered the city police bureau's Marijuana Task Force to release details of a secret "trap and trace" telephone surveillance operation they have reportedly maintained on American Agriculture, a local indoor gardening supply store, for at least the past three years. The task force, apparently, traced the numbers of every caller to the store, and used that information to target private homes for searches for evidence of marijuana cultivation.

Trap and trace procedures do not record conversations like a wiretap, but only trace callers' phone numbers. Still, their use by law enforcement is regulated and limited to certain circumstances. In Oregon, police are required to have a court order allowing them to collect the numbers from the local phone company, and the trap and trace is supposed to be used only for thirty to sixty days in order to monitor a specific suspect.

But several months ago, a defendant in a marijuana cultivation case became suspicious of what had led police to his door. According to court documents, Jeffrey Hauser of Bend, Oregon, called an officer on the Portland task force, pretending to be a Bend policeman. In the conversation that followed, the Portland officer revealed that since 1995, the task force had made weekly downloads of the phone numbers of all callers to American Agriculture. Using a reverse-lookup service to find the callers' names and addresses, the task force then ran the information through the local electric company, profiling those customers who used too much -- or even too little -- electricity.

Now, a group of defense attorneys and their clients are questioning the legality of the task force's use of the trap and trace, and hoping that the judge's order will shed more light on the special unit's practices.

"It's our theory that the trap and trace is like pulling on the string that unravels the whole sweater," defense attorney Bob Theummel told The Week Online. "It's the beginning of a process that results in a whole lot of marijuana busts." Theummel said he suspects that the trap and trace is behind the task force's great success with knock-and-talk busts, wherein the police come to people's doors without a warrant and attempt to talk their way inside. Once the resident has consented to this, it becomes nearly impossible to have any evidence the police find suppressed in court. The four member task force boasts a 50% arrest rate in as many as 2,000 knock-and-talk operations over the seven years since its inception.

But attorney Michelle Burrows, who is also representing a client in the trap and trace case, said that at least one member of the task force has resorted to strong-arm tactics when he is denied entry to a home. She said, "Brian [Schmautz] claims that whenever he has smelled marijuana at someone's door, he has found it. In Oregon, it's not enough to have high electricity bills to get in the door, but once they have the smell, they can get a warrant. Well, when people would say 'go away,' he would say 'okay, fine, here's my business card' or would reach out to shake the person's hand. And then -- he's said this in affidavits, in the police reports -- he arrests the person's hand. And then we found out that in several cases, they don't even arrest the hand. They will actually pull the person out of the house and then arrest them on the porch."

Burrows said that one motivating factor behind the task force's behavior is probably the money it raises through asset forfeiture. "That's one of the more insidious parts of this," she said. "It's not only their methodologies, which are very questionable, but that they're making a lot of money for the Portland Police Bureau with these questionable methodologies."

Defense attorney Philip A. Lewis agrees. He said that the Portland task force represents "an independently funded, independently operated war on marijuana. And the reason they're going after marijuana is not because they're so down on marijuana, but because it's easy to do, and there's money in it. Rather than going after methamphetamine labs or major cocaine dealers, they go after mom-and-pop marijuana growers. Almost all the cases they make are relatively small cases, but they make money on it because they can legally force the owners to cough up a percentage of the equity on their homes."

This week, Judge Michael Marcus told attorneys for the task force and the city that they must produce documents detailing the trap and trace by May 4, or else admit that the procedure is illegal. If it is shown to be illegal, the defense attorneys must then try to prove that their clients' arrests stemmed directly from the operation.

Meanwhile, American Agriculture, the gardening store whose callers were traced, has filed suit against the task force. "First we have to file a preliminary injunction to make them stop trapping and tracing," said Spencer Neal, one of the attorneys representing the store. He said the task force still has not technically admitted the existence of the trap and trace, let alone confirmed whether the practice has stopped. He said the outcome of the criminal case will not affect American Agriculture's suit. "The criminal cases simply alerted us to the fact that the police were violating our clients' civil rights -- surprisingly enough."

Attorneys for the marijuana task force and the City of Portland have stated they are confident that the trap and trace operation will be proved legal. They were not available for comment on this story.

(Jeffrey Hauser, who recorded the conversation with the Portland officer that revealed the trap and trace, was acquitted in his marijuana cultivation case but now faces felony charges of impersonating an officer. The transcript of his conversation is a public document, and was originally published in Willamette Week. DRCNet has reproduced it on the web at http://www.drcnet.org/transcript.html.)


2. Two New Polls Show Strong Public Support for Drug Policy Reform

Scott Ehlers, Senior Policy Analyst, Drug Policy Foundation, [email protected], http://www.dpf.org
Whether it be medical marijuana or sentencing reform, Americans are ready for drug policy reform, according to two recent public opinion polls conducted by Gallup and the New York Law Journal.

On March 26, the nationally recognized Gallup Organization released the results of a poll that included two marijuana-related questions. According to the telephone survey of 1,018 adults, 73 percent of respondents would "vote for making marijuana legally available for doctors to prescribe in order to reduce pain and suffering." The highest support was among independent voters, at 79 percent, while 77 percent of 18-to-29 year-olds supported medical marijuana.

When asked, "Would you vote for or against the legalization of marijuana?", 29 percent of respondents said they would vote in favor. This is the highest level of general public support for marijuana legalization since Gallup began asking the question in 1969. Once again, the highest support came from 18-to-29 year-olds and independents, with 44 percent of younger voters and 37 percent of independents favoring legalization.

How much effect did the recent release of the Institute of Medicine's medical marijuana report have on the results? According to the Marijuana Policy Project's director of government relations, Rob Kampia, "Not a lot." According to Kampia, "Over the last few years, all the polls have shown a high level of public support for medical marijuana, ranging anywhere from 60 to 80 percent. The Gallup Poll reflects that."

As to why there seems to be a higher level of public support for marijuana legalization, Kampia points to the successes of marijuana decriminalization initiatives in Arizona and Oregon as possible influencing factors. "Certain people are not willing to admit they are in favor of controversial issues like marijuana legalization unless they see that a lot of other people support it. People like to be on the winning team, whether it be football, basketball, or politics."

On March 29, the New York Law Journal released the results of its poll of 909 New York voters conducted by the Quinnipiac College Polling Institute. The poll found that more than two-thirds (69%) of respondents preferred for judges to be allowed to decide on a case-by-case basis the length of sentences for those convicted of selling drugs, rather than having sentences set strictly by state law. The poll also found, however, that 70 percent of respondents believed that a prosecutor should have the right to appeal a sentence for drug use or sales if he/she believes the judge's sentence is too lenient.

The poll is significant because there have been extensive outcries against the harsh Rockefeller drug laws in New York state in recent months. Last month, Chief Judge Judith S. Kaye proposed legislation to change the Rockefeller drug laws by allowing appellate courts to reduce the 15-year mandatory minimum sentence for the most serious drug felonies. She also suggested that trial judges, with the consent of the prosecutor, be allowed to defer prosecution of low-level drug offenders for two years, and instead divert them to drug treatment programs.

The New York Law Journal poll is online at http://www.nylj.com/stories/99/03/032999a3.htm.


3. Courts Place Limits on Drug Testing in Workplace, Schools

Scott Ehlers, Senior Policy Analyst, Drug Policy Foundation, [email protected], http://www.dpf.org
Drug testing in the workplace and schools were given a setback in recent weeks thanks to the Supreme Court and a US District Court. Although neither case is precedent-setting, both cases could potentially effect how schools and private employers conduct their drug testing programs.

On March 22, the Supreme Court announced its denial to review Anderson Community School Corp. v. Willis (98-1183), in which it let stand a ruling by a three-judge panel in the 7th U.S. Circuit Court of Appeals. The Appeals Court found the Anderson school district's policy of drug testing suspended high school students to be a violation of the students' privacy rights.

The case involved James Willis II, a freshman at Highland High School, who was suspended in December 1997 for five days for fighting. According to the school official who immediately saw Willis, there was no indication that he had been using alcohol or drugs.

The Anderson County policy required that all students suspended for three or more days to take a urine test in order to be reinstated. If the test detected alcohol or drug metabolites, then the student's parents and a designated school official would be notified, but no additional punishment would be inflicted.

Willis refused to take the drug test and sued the school district. A federal district court judge upheld the drug testing policy, but the 7th Circuit Court reversed the ruling, saying that drug testing must be restricted to disciplinary cases where students were individually suspected of using drugs or alcohol.

While the Supreme Court let the ruling stand, it has also upheld drug testing of students who wish to participate in extracurricular activities. In 1995, the Court ruled in Vernonia School District v. Acton that randomly drug testing student athletes did not violate their 4th Amendment protection against unreasonable search and seizure. And last October, the Court let stand a ruling which found that the Rush County, Indiana school district did not violate students' rights when they required all students participating in any extracurricular activity -- from athletics to the chess club -- to be subjected to random drug testing.

In a very different case decided this week, Chief U.S. District Judge Sylvia H. Rambo found the drug testing policy of a Pennsylvania company to be a violation of the Americans with Disabilities Act (ADA). The case, Rowles v. Automated Production Systems, was brought by John Rowles, an epileptic who takes an anticonvulsant, Dilantin, and Phenobarbital to control his seizures. After Rowles found out that the company's drug policy required him to disclose the use of prescription drugs and could result in his firing for taking Phenobarbital, a controlled substance, he refused to take the drug test. He was subsequently fired.

In Judge Rambo's decision, she noted that precedent had established that "at some point, an individual's privacy interests trump an employer's efficiency concerns," that APS's drug testing program was "highly offensive," and that private medical facts would be revealed by the drug testing process. She granted Rowles partial summary judgement under the ADA because APS had a policy of prohibiting the use of certain prescription drugs, even if their use had no effect on job performance.

Lewis Maltby, director of the ACLU's Workplace Rights Office, echoed Judge Rambo's reasoning and applauded her decision for protecting disabled workers: "What this company's drug testing policy did, in effect, was prohibit persons with certain disabilities from working for the company. It clearly violates the ADA."

Maltby went on to tell the Week Online, "Clearly this is an issue that the drug warriors did not think about. It exposes the inherent contradiction in drug testing by trying to distinguish between 'drugs' and 'medicines,' and the lack of distinction inevitably causes problems with the ADA. The only way to screen for people who don't use illegal drugs is to require them to disclose what prescription drugs they are using, which in turn is a potential ADA violation."


4. Hash Bash Draws Ire of State Lawmakers

Marc Brandl, [email protected]
This weekend, the University of Michigan at Ann Arbor will host one of the country's longest-running annual marijuana rallies. The event originated as a celebration when local residents voted to reduce the penalty for possession of small amounts of marijuana to a $5 fine, making Ann Arbor home to one of the most liberal marijuana laws in the United States. The 28th Annual Hash Bash will feature speakers like Tommy Chong and The Emperor Wears No Clothes author Jack Herer, and is expected to draw as many as 20,000 people, depending on the weather. But a bill that recently passed the Michigan Senate threatens to put permanent rain clouds over the rally. S.B. 380 would nullify local ordinances like Ann Arbor's, forcing cities to impose drug penalties as harsh or harsher than those enforced at the state level.

State Senator Beverly Hammerstrom (R-Temperance), who sponsored the bill, made it clear that S.B. 380 is aimed directly at Ann Arbor's law and the Hash Bash in particular. At a press conference last week, she produced several teenagers who told reporters that they had tried marijuana for the first time at past Hash Bash rallies. Hammerstrom later told the Detroit News, "When a local unit of government penalizes an individual with a $25 dollar fine, it is in essence making the statement that this is not an important issue. It is time we send a clear message to our youth that we are serious about the war on drugs and that this is an important issue across the state."

But Adam Brook, a former organizer of the Hash Bash, said he believes that the bill, if passed, will have no effect on the Hash Bash or Ann Arbor's liberal marijuana law. "First of all, campus police have been deputized to enforce the state law, not the Ann Arbor law," he said. "Second, the bill will have no teeth because the law is part of the city's charter and cannot be changed except by a vote of local residents. The lawmakers know this," he said. In 1990, citizens of Ann Arbor voted to keep the law, but raised the fine from $5 to $25.

Linda Wagenheim of the Michigan ACLU says the group will lobby against the bill when it is considered in the Michigan House. "We oppose the bill because it targets Ann Arbors' law, which is a result of a vote of the people," she said. "Law enforcement's finite resources should be spent on better things." But Wagenheim concedes that it will be hard to stop the bill. "It's probably on its way [to passage]. We have a Republican majority in the House and Senate and a Republican governor." A similar law almost passed in the last legislative session, but was dropped because it was not germane to the appropriations bill to which it was attached.

(Editor: The Hammerstrom bill is likely to add fuel to a debate within the reform movement over the issue of marijuana rallies. While some reformers believe the rallies play an important role in bringing advocates together and demonstrating both the large number and peaceful nature of marijuana users, others believe the rallies provide opportunities for the media to put out images that impact negatively on drug policy reform efforts, such as teen marijuana smoking, as well as rhetorical ammunition for politicians like Hammerstrom, who wish to make drug laws harsher.)


5. California Democrats Give Nod to Industrial Hemp

Marc Brandl, [email protected]
Industrial hemp advocates in California were elated to learn that the state's Democratic Party (CDP) endorsed a resolution supporting the legalization of the crop at their annual convention in Sacramento this week. The resolution states, in part, "The CDP endorses the legalization of the domestic production of Industrial Hemp, and strongly recommends to the State Legislature that laws be adopted to allow Industrial Hemp to be cultivated and harvested."

"This vote of confidence is a stunning victory for the industrial hemp movement," proclaimed Mari Kane, editor and founder of the California-based HempWorld Journal. Kane and several other hemp advocates had booths at the CDP's convention, which hosted more than two thousand delegates.

The resolution was put forth by Sam Clauder, a member of the central committee of the Orange County Democratic Party and executive director of the pro-hemp advocacy group, Californians for Agricultural and Industrial Renewal, (CAIR). "Democrats have a solid majority in both chambers of the California legislature and control most statewide elected offices," Clauder told The Week Online. "The democrats are really the machine of state politics, and this is an important prelude to getting an industrial hemp bill introduced and passed this year. Without the machine behind it, it would be harder to accomplish." Clauder, who is a political consultant, said he learned of hemp's value while working for environmental causes.

A political action committee has been formed, and Clauder says he hopes to raise at least $20,000 to lobby for hemp. Plans have also been drawn up to make hemp an issue at the 2000 Democratic National Convention, which will be held in Los Angeles. "At that time," Clauder said, "we intend to place a plank in the national platform of the Democrat Party, to establish the legalization of industrial hemp as a political issue of major importance to the nation's economy and the planet's ecology."


6. Government Reports: Prison, Drug Use Trends

A report released by the Bureau of Justice Statistics, a division of the US Dept. of Justice, found that at midyear 1998, 1 in every 150 US residents was incarcerated, with an estimated 1,802,496 men and women held in the country's prisons and jails. "Prison and Jail Inmates Midyear 1998," NCJ (173414). Copies of this and other BJS reports can be obtained from the What's New page of the BJS web site at http://www.ojp.usdoj.gov/bjs/whtsnw2.htm, or by calling BJS at (800) 732-3277.

The Office of National Drug Control Policy has released its "Pulse Check: National Trends in Drug Abuse, Winter 1998" report. The report offers demographic information on local drug use patterns throughout the country. This release includes findings of widespread marijuana use, methamphetamine problems in Hawaii, and a move toward snorting heroin rather than injecting it in the Northeast and Mid-Atlantic South, as well as a section on "club drugs." The report can be obtained online at http://www.whitehousedrugpolicy.gov/drugfact/pulsechk/winter98/winter98pulse.pdf, or by calling (800) 666-3332.

These and many other government reports can also be ordered by writing to the National Criminal Justice Reference Service, e-mail to [email protected], or by mail to P.O. Box 6000, Rockville, MD 20849-6000.

Periodic bulletins from NCJRS can be obtained on the web at http://www.ncjrs.org/justinfo/, or by e-mail through the justinfo mailing list -- to subscribe, send e-mail to [email protected] with the line "subscribe justinfo your name" in the body of the message.


7. ACLU: Financial Privacy Update

The following bulletin has been forwarded from the American Civil Liberties Union Action Network For further background, see http://www.drcnet.org/wol/082.html#kyc and http://www.drcnet.org/wol/076.html#kyc in our archives.

TO: ACLU Action Network
FROM: Penny Crawley, ACLU Cyber Organizer
DATE: April 1, 1999

Momentum around a financial privacy bill is building after more than 250,000 Americans took a stand against the so-called "Know Your Customer" banking regulations.

The proposed "Know Your Customer" regulations would have required banks to profile their customers, monitor their financial transactions, and report certain unusual transactions as "suspicious" to the super-secret Financial Crimes Enforcement Network (FinCEN) at the Treasury Department. These proposed regulations were withdrawn by the FDIC earlier this week.

Even though the proposed "Spy on Your Customer" regulations were withdrawn, banks will continue to spy on their customers. That's because regulations under the Bank Secrecy act require banks to report their customers as suspects" to a super-secret agency in the Treasury Department. Bankers are supposed to file a "Suspicious Activities Report" whenever the banker has "reason to suspect" that a large transaction is unusual for the customer and the "bank knows of no reasonable explanation for the transaction."

There may be a fix, however. Representative Ron Paul (R-TX) has introduced HR 518, which would repeal the statute used to justify bank spying. HR 518 would also prevent bank regulators from enacting "Know Your Customer" regulations in the future.

Fight for your financial privacy! Send a FREE FAX to your Representative urging him or her to support HR 518 from the ACLU web site at:

http://www.aclu.org/action/finprivacy106.html

For extra credit, you can also turn the tables by getting to "Know Your Banker!" Check out the "Know Your Banker" feature on the ACLU web site at:

http://www.aclu.org/privacy/financial.html


8. EDITORIAL: Funding The Unknown Soldier

Adam J. Smith, Associate Director, [email protected]
As war rages in Europe this week, scattered reports have popped up claiming that the KLA, the armed forces of the Kosovarians, have been linked to major European drug trafficking. The KLA, of course, is on NATO's side, and so we shouldn't expect to hear President Clinton or Barry McCaffrey publicly crowing about the matter, as they have done for several years when the subject of the Colombian rebels has come up.

The issue, however, is not whether the groups raising money off the drug trade are "good guys" or "bad guys," but rather that the drug trade is funding political and quasi-political groups all over the world. Some of those groups, like the KLA, are aligned with official US interests, but many others are not. In fact, for terrorist groups, fringe movements and dictator wannabes, the drug trade, courtesy of prohibition, is the fastest and easiest way to raise money for arms and other instruments of mayhem.

This fact has not been lost on American agencies either. The CIA, for instance, knows well the convenience of the drugs for weapons matrix from its involvement with the Contras, and perhaps even before that. Easy cash, lots and lots of it, is temptation in the extreme, making it difficult for even well-funded spooks and arms of state to resist dipping their fingers into the contraband pie. Imagine then the choice faced by any wacko with a "cause." It's a no-brainer, really. Drugs have become the currency of choice in a world where the prospect of a nuclear bomb in a suitcase or anthrax in a subway station is no longer the stuff of late night science fiction.

What to do? Well, we can go on pretending that we're addressing the problem, running lengthy and elaborate undercover operations designed to pick off these operations one by one, but of course, we'd only be fooling ourselves. The UN reports that narcotics now account for 8% of all global trade. And while America's prisons are filled with two-bit dealers and strung-out addicts, the real money is being made by people and groups who stand little risk of ever being called to account for something as trifling as drug trafficking. Prohibition has turned poppies and coca into money trees, and anyone with the wherewithal to move cargo from point A to point B under the protection of arms or payoffs can make a killing. Literally.

So on we go. This week's shocking -- if unconfirmed --revelation is that the KLA has (gasp) funded itself to one extent or another via the drug trade. Well, given the scope and the nature of that business, they'd have been stupid to have turned down the opportunity. When you are involved in or planning armed struggle, or to blow up a passenger jet or to poison innocent commuters, are you likely to find the immorality of supplying a much-in-demand product too high a price for your soul to bear? Not likely. Today we can be thankful that the newly exposed KLA-drug connection was not perpetrated for the purpose of buying a nuclear device from a renegade Russian general, or rocket launchers to take down a planeload of tourists. These drug dealers are on "our" side. But make no mistake, our precious drug war is lining the pockets and building the arsenals of plenty of groups whose sworn enemies are not named Slobodan Milosevic. We do have the power to de-fund them. All at once.


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