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Marijuana: Sight of Someone Smoking a Joint Not Grounds for Home Search, California Appeals Court Rules

The California Court of Appeals in San Francisco ruled last Friday that police cannot enter a home without a search warrant just because they see someone smoking marijuana inside. Police may enter a home to preserve evidence of a crime, the court held, but only if the crime is punishable by jail or prison. The ruling came in People v. Hua.

Under California law, possession of less than an ounce of marijuana has been decriminalized with a maximum $100 fine and no jail time. Because simple possession has been decriminalized, even if police see someone smoking a joint inside a house, they have not witnessed a jailable offense, hence the only way they may enter without a search warrant is if they seek and receive the permission of a resident.

The case came about in March 2005, when officers in Pacifica came to an apartment on a noise complaint, smelled marijuana as they approached, then looked through a window to see what appeared to be someone smoking pot in a group of people. Police then entered and searched the apartment over the objections of resident John Hua. They found two joints in the living room, 46 plants in a bedroom, and an illegal cane-sword on a bookshelf.

After a San Mateo County judge upheld the police search, Hua pleaded no contest to cultivating marijuana and possession of the sword and served a 60-day jail sentence. But he retained his right to appeal the search ruling.

On appeal, prosecutors offered a two-pronged argument: that they had reason to believe there was more than an ounce of marijuana in the apartment, and that Hua or others might be committing a felony by handing the joint back and forth. But the court wasn't buying; it said the first argument was "mere conjecture" and the second was a misinterpretation of the law, which prescribes the same fine for giving a joint to someone as it does for smoking it.

Prosecutors aren't happy. California Deputy Attorney General Ronald Niver said he would recommend appealing the ruling to the state Supreme Court. "It's difficult to accept the proposition that if you see marijuana in one room, you cannot draw the inference that there's marijuana in another room," he said. "It's like saying that if you see the streets are wet, you can't infer that it's raining."

Ironically, Niver's boss, California Attorney General Jerry Brown, was the governor who signed the decriminalization bill in 1978.

Marijuana: Vermont to Consider Decriminalization, But Wants to Crack Down on Hard Drugs

The Vermont legislature will this year take up a bill to decriminalize the personal possession, growing of two plants, and small-scale sales of marijuana. At the same time, the legislature will consider a proposal to lower the threshold for what constitutes "trafficking amounts" for hard drugs such as heroin and cocaine. Both proposals will be discussed at public hearing of the Senate Judiciary Committee on January 23.

The legislative moves come after months of discussion about the cost and efficacy of Vermont drug policy and sometimes heated debate over marijuana decriminalization. The decrim debate really heated up last fall when Republican Gov. James Douglas ordered that marijuana cases be taken away from the office of Windsor County prosecutor Robert Sand, who approved court diversion for a local attorney caught growing 30 pot plants. Douglas accused Sand of having a blanket diversion policy, but backed off the state control over prosecutions after Sand made it clear he had no such blanket policy, and after it was found that an Orange County prosecutor had done a similar deal for a man arrested with more than 100 plants.

Senate President Pro Tem Peter Shumlin (D-Windham) said last month that drug law reform, including marijuana decriminalization, was one of his top priorities for the current session. That moved Gov. Douglas to say that he was open to decrim discussions, although he has not endorsed the idea.

The marijuana decrim bill, S-238, was introduced last year and reintroduced this year by Sen. Jeannette White (D-Windham). Under the bill, possession of up to four ounces or two plants and sale of less than four ounces would be a civil violation with a maximum penalty of a $1,000 fine. Possession of more than four ounces or more than five plants would still be a crime punishable by up to five years in prison under the bill.

While White's decrim bill is a step in the right direction, the hard drug bill, S-250, to be offered by Sen. Richard Sears (D-Bennington), head of the Senate Judiciary Committee, is not. That bill would lower the threshold for criminal trafficking charges from 300 grams of cocaine to 150 and from seven grams of heroin to 3.5. People convicted of possessing drugs in such amounts would face up to 30 years in prison and a fine of up to one million dollars.

Sears has also signaled that he thinks the four ounce decrim limit is too high. "Four ounces of marijuana is a felony," he told the Barre-Montepelier Times Argus. "I don't think we want to go there."

But Sears is open to discussion, he said. "I thought it was important to let the public weigh in before we started taking a close look at the proposals," he said. "This is a change in state law regarding drugs, and the public probably has some thoughts about this."

Marijuana: Vermont Governor Open to Discussing Decriminalization, He Says

In an apparent change of attitude, Vermont Republican Gov. Jim Douglas said last week that he was open to discussing marijuana decriminalization. That stance is a shift from positions he took just a couple of months ago, when he had the state take temporary control of marijuana cases from Windsor County after the local prosecutor, Bobby Sands, was accused of having a policy of diverting marijuana cases because he thought it should be legalized.

But Sands, who claimed he had no blanket policy of diversion, is not alone in supporting decrim. Democratic Senate President Peter Shumlin has now floated a proposal to consider decriminalization. The cut-off level for diversion instead of court proceedings should be a half-ounce of weed, Shumlin suggested.

Responding to Shumlin's proposal at a January 3 press conference in Montpelier, Gov. Douglas said he was open to discussing the matter, but that he wasn't sure about a specific amount. He added that the state needs to maintain enforcement efforts against harder drugs and the misuse of prescription drugs.

Vermont arrested some 1,800 people for small-time marijuana possession last year, according to the state Department of Public Safety.

Mexico: Marijuana Decriminalization Bill Introduced

A bill that would remove the threat of jail from marijuana consumers was introduced in the Mexican congress late last month. Introduced by Social Democratic Alternative Party Deputy Elsa Conde after being developed in working sessions with a group of marijuana experts and activists known as Grupo Cañamo, the copy of the bill presented to congress was written on hemp paper.
Elsa Conde
The bill is the first of a proposed four-part package that will also include legislation on industrial hemp, medical marijuana, and the rights of consumers.

The bill would reform the penal code so that, while marijuana use remains illegal, it would be punished not by jail time but with "informative and educational" sanctions that would protect the health and freedom of users without exposing them to "our deficient penitentiary system," Conde said.

The limit proposed for possession is a relatively stringent two grams. The bill would also allow for up to three plants.

The bill, said Conde, would also "contribute to the battle against organized crime by focusing on those who profit from the trade," not consumers.

"We are looking to decriminalize a debate largely suppressed in our society and we appeal for a critical, scientific, and unbiased examination of a plant that, without being innocuous, has never represented a serious public health problem and that nobody, ever, has suffered a grave harm to his health by consuming it occasionally or habitually, not even by abusing it -- a quality that many other substances, including legal ones like alcohol and tobacco, lack," said Deputy Conde as she introduced the bill. "To sum up, we recognize that, eventually, the use or abuse of marijuana could represent a public health problem, but what is most harmful to our society is the policy of absolute prohibition. Keeping this in mind, we call on the legislature, the executive branch, and our society to assume the task of reducing the harm as a shared responsibility."

While proponents of the bill claim it has public backing, the prospects for rapid passage appear to range from slim to none. Conde is one of only four Alternative members seated in Mexico's 500-member congress, and while members of all of the big three political parties have expressed interest in marijuana law reform, that is still a minority position within those parties. Still, as the government of President Felipe Calderon prepares to gear up its war on drugs with an infusion of hundreds of millions of dollars in US assistance, it is heartening to see some evidence of a counter-current.

Caribbean: Trinidad & Tobago Political Leader Calls For New Approach in Dealing with Marijuana

In the run-up to Trinidad & Tobago's national elections Monday, United National Congress (UNC) Party leader Basdeo Panday called for a new approach to dealing with marijuana in the island republic. It wasn't enough to bring the UNC to victory, though; it was defeated once again by the ruling People's National Movement (PNM), which picked up 26 seats in the legislature, compared to 15 for the UNC. Still, the leader of the primary opposition party in the country is calling for a reefer reassessment.
"I think we ought to look at that to see whether prohibiting things really ends the problem," Panday said during a pre-election radio forum. Panday recalled the "old days," when there was a shop selling "ganja" in Princes Town and people would smoke it in chillums on Saturday nights after working in the fields all week. "It never was a problem. That is the strange thing about it. I think we ought to go back and study that," Panday said.

If ganja were to become unavailable because of police crackdowns, Panday said, "fellas would plant it in their backyard" and such a crackdown would be as unsuccessful as American attempts to prohibit alcohol in the 1920s. There needed to be "another approach" to marijuana," he said without going into specifics.

Although marijuana is woven into Trinidad & Tobago culture, as it is throughout much of the Caribbean -- "The Ganja's Farmer's Lament" topped the charts there a couple of years ago -- the islands' use rates are among the lowest in the region. According to the United Nations Office on Drug Control 2007 World Drug Report, use rates were 3.7% in Trinidad and Tobago, compared with nearly 11% in Jamaica and more than 5% in Barbados, Bermuda, Grenada, Haiti, St. Vincent and the Grenadines, and the Turks and Caicos Islands.

Marijuana is one thing, but "heavy drugs" are another matter, Panday said, claiming that 80% of crime in the country was linked to their use and trafficking. To combat hard drugs, he said, the "mafia" would have to be dealt with.

Public Forum: Should drugs be decriminalized?

Mark Forsythe of CBC radio will be host/moderator for this special event featuring retired provincial court judge Jerry Paradis and Tony Smith, a retired police officer. Both men are members of Law Enforcement Against Prohibition (LEAP). Educators for Sensible Drug Policy will be there to participate in this community dialogue and will hand out Safety1st brochures, Beyond Zero Tolerance booklets and an EFSDP information kit. "The idea for the LEAP forum, like all our courses, is ours," said Eldercollege chair Anne Carr.
Sat, 11/03/2007 - 4:00pm
5904 Cowrie Street
Sechelt, BC

Marijuana: Democratic Candidates Forgo Opportunity to Support Decriminalization During Tuesday Night Debate

Drug policy made an ever-so-brief appearance at the tail end of Tuesday night's televised debate among Democratic presidential candidates, and the results were disappointing for drug reformers. When NBC's Tim Russert asked candidates for a show of hands to indicate if they disagreed with Connecticut Sen. Chris Dodd's support for marijuana decriminalization, all except Ohio Rep. Dennis Kucinich raised their hands.

Senators Hillary Clinton, Joe Biden, and Barack Obama, former Sen. John Edwards, and New Mexico Gov. Bill Richardson all declined the opportunity to take a progressive stand on marijuana policy. Former Alaska Sen. Mike Gravel, who has called for the legalization of drugs, was not invited to the debate.

Here is the transcript of the relevant portion of the debate:

Russert: Senator Dodd, you went on the Bill Maher show last month and said that you were for decriminalizing marijuana. Is there anyone here who disagrees with Senator Dodd in decriminalizing marijuana?

Senator Biden, Senator...


Senator Edwards, why?

Edwards: Because I think it sends the wrong signal to young people. And I think the president of the United States has a responsibility to ensure that we're sending the right signals to young people.

Dodd: Can I respond just why I think it ought to be? We're locking up too many people in our system here today. We've got mandatory minimum sentences, they are filling our jails with people that don't belong there. My idea is to decriminalize this, reduce that problem here. We've gone from 800,000 to 2 million people, in our penal institutions in this country. We've got to get a lot smarter about this issue than we are. And as president, I'd try and achieve that.

And then it was on to a question about Chinese toys and a question about what candidates would wear for Halloween, and then the debate was over.

Look for detailed coverage of the various Democratic candidates' positions on a number of drug policy issues here next week, with a report on the Republicans' positions the following week. But if the Democratic contenders aren't interested in even giving decrim an approving nod, prepare to be disappointed in their other drug policy positions, too, and expect even worse from the Republicans.

Marijuana: Pot Politics On Display in Local Races in Cincinnati and New York State

Local races across the country will be decided in next month's elections, and marijuana policy is popping up in some of them. In Cincinnati, pot policy is part of a mayoral campaign, while in Utica County, New York, which includes the towns of Woodstock and New Paltz, a candidate for district attorney is taking flak over an apparent pro-marijuana legalization stance.

In the Utica County DA race, Democratic contender and assistant Ulster County public defender Jonathan Sennett is taking flak for reportedly twice saying marijuana should be legalized and once saying it should be decriminalized during campaign events.

"The scientific evidence is pretty solid that marijuana is not more harmful than alcohol or tobacco," he said in an interview with the Daily Freeman. "I don't believe that a substance should be determined to be legal or illegal in inverse proportion to its lobbying effort. We don't prosecute people as felons for selling alcohol to kids," Sennett said.

While Sennett didn't use the L-word in that interview, his opponents, Republican Holley Carnright of Saugerties and Conservative/Independent Vincent Bradley Jr. of Kingston, say they heard Sennett call for legalization twice -- once in a public access interview program in Woodstock and once at a joint appearance earlier this month before the Ulster County Police Chiefs Association at the Ulster County Law Enforcement Center.

The pair of self-confessed drug warriors were quick to pounce. "I don't understand what (Sennett) means by 'decriminalization.' You can't get less than a violation. It's equivalent to an appearance ticket for jaywalking," said Bradley, a former Manhattan assistant district attorney.

"He can dance all around it and blow smoke, but I think his message is clear, intended or not, that he doesn't think marijuana is any worse than tobacco. It is totally inappropriate for a DA to say that," said Carnright, a former chief assistant district attorney for Ulster County. "I think it's a bad idea. You can't be the DA and send out that kind of message. The message, especially to kids, is (marijuana) is bad for you. Any other message is inappropriate."

Meanwhile, in the Cincinnati mayor's race, the council's passage last year of an ordinance criminalizing the possession of small amounts of marijuana is on voters' minds. In Ohio, possession of up to four ounces is decriminalized under state law, but Cincinnati council members approved the local ordinance as an anti-crime measure. The candidates were quick to stake out their ground.

"In March of this year I, along with Vice Mayor Tarbell, cast the two lone votes against an ordinance that criminalized the possession of small amounts of marijuana... The reality is that many of them are let out of prison early because of a shortage of jail space. Given this problem it makes little sense to me to pass a law... which inevitably will crowd our jails with nonviolent offenders," said Democratic contender David Crowley.

Crowley was joined by one Republican candidate and independent candidate Justin Jeffre in vowing to overturn the measure, but another Republican candidate thought it had worked just fine. "The Marijuana Ordinance has been highly successful over the past 15 months. During this time, the police, using the ordinance, have been able to confiscate over 100 illegal guns and millions of dollars of illegal drugs such as cocaine, crack, heroin and methamphetamine," said Leslie Ghiz.

"Someone asked if (we) would have the 'spine' to repeal the ordinance," retorted Jeffre. "I have vowed to work in conjunction with Vice Mayor Crowley and Councilmember Qualls to do exactly that... Ghiz quotes a bunch of numbers out of context to scare voters into thinking this law does anyone any good... Ghiz says the law targets not recreational smokers, but dealers. Can we really believe that all these thousands upon thousands of people were dealers?"

"Whether you believe in smoking marijuana or not, this is just simply bad legislation which will have the foreseeable consequences of bogging down the court system and using up jail space that should be reserved for violent criminals," agreed Republican candidate Charlie Winburn. "I am not yet certain this is going to make our city safer, but I do know that council has no leadership agenda for reducing violent crime in Cincinnati."

It will be November before we know if candidates with progressive positions on marijuana policy have been helped or hindered by their stands. In Utica County, drug warriors are doubling up on the reformer, but we'll have to see if voters agree. In Cincinnati, three out of four council candidates want to undo the marijuana ordinance, and again, we'll have to see. But at least these days, the campaign discussions about marijuana policy are no longer one-sided.

Cannabis country

Edmonton Sun (Canada)

It's the great marijuana debate

Timmins Daily Press (Canada)

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