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Law Enforcement: Veteran Activist Dana Beal Busted for 150 Pounds of Pot in Nebraska

Long-time marijuana legalization activist Dana Beal was one of three men arrested October 1 in Ashland, Nebraska, after they were pulled over in a traffic stop and police seized 150 pounds of marijuana. He and the other two men, Christopher Ryan of Ohio and James Statzer of Michigan, are being held in the Saunders County Jail, with bail set at $500,000 for Beal and $100,000 for Ryan and Statzer. Beal, an erstwhile Yippie activist from the 1970s and permanent fixture on the counterculture scene, heads the New York City-based organization Cures Not Wars, which advocates for the use of ibogaine as a treatment for drug dependence. But he is more widely known for acting as an information clearing house for the annual legalization rallies held each May in more than 200 cities around the planet known as the Global Marijuana March or Million Marijuana March. The men were traveling from California, where they had attended the annual conference of the National Organization for the Reform of Marijuana Laws (NORML) the previous week. According to local media reports, police stopped the van in which they were riding for "driving erratically," and when the police officer approached the vehicle, he saw "several bags of marijuana in plain view." He then called for assistance, and police then found multiple duffel bags of marijuana, totaling 150 pounds, throughout the vehicle. Last year, Beal was arrested in Illinois on money-laundering charges after police there seized $150,000 in cash and a small amount of marijuana from his vehicle. The money-laundering charges were later dropped, and Beal pleaded guilty to misdemeanor marijuana possession. The state of Illinois kept the money. Beal's supporters have begun a fund-raising drive to raise the $50,000 cash bail needed to free him and to pay his legal expenses. See the Free Dana Beal Facebook page, web page, or blog for information on how you can help.
Ashland, NE
United States

Asset Forfeiture: Texas DA Seeks to Use Seized Funds to Defend Herself in Lawsuit Over Unlawful Seizure of Same Funds; ACLU Objects

The Texas district attorney accused of participating in an egregious asset forfeiture scheme in the East Texas town of Tenaha now wants to use the very cash seized to pay for her legal defense in a federal civil rights lawsuit filed by victims of the practice. The ACLU of Texas, which, along with the national ACLU, is representing the plaintiffs in the case, filed a brief last Friday with the Texas Attorney General's office seeking to block her from doing so. Lynda Russell is the district attorney in Shelby County, where Tenaha is located. She is accused of participating in a scheme where Tenaha police pulled over mostly African-American motorists without cause, asked them if they were carrying cash, and if they were, threaten them with being immediately jailed for money laundering or other serious crimes unless they signed over their money to authorities. Representing a number of victims, attorneys from the ACLU of Texas and the ACLU Racial Justice Project filed a civil lawsuit in federal court in June 2008. According to the suit, more than 140 people, almost all of whom were African-American, turned over their assets to police without cause and under duress between June 2006 and June 2008. If a federal judge agrees that assets were in fact illegally seized, they should be returned to their rightful owners, whose civil rights were violated. In one case, a mixed race couple, Jennifer Boatwright and Ronald Henderson, were stopped by a Tenaha police officer in April 2007. According to the lawsuit, they were stopped without cause, detained for some time without cause, and asked if they were carrying any cash. When they admitted they had slightly more than $6,000, a district attorney's investigator then seized it, threatening them with arrest for money laundering and the loss of their children if they refused to sign off. There was never any evidence they had committed a crime, and they were never charged with a crime. The town mayor, the DA, the DA's investigator, the town marshal, and a town constable are all named in the lawsuit. While they claim to have acted legally under Texas asset forfeiture law, the lawsuit argues that "although they were taken under color of state law, their actions constitute abuse of authority." The suit argues that the racially discriminatory pattern of stops and searches violated both the Fourth Amendment proscription of warrantless searches and the Fourteenth Amendment's due process clause. While either the county or the state would normally be expected to pony up for the DA's legal expenses for a lawsuit filed as a result of her performance of her duties, neither has done so. That's why Russell—with a tin ear for irony—requested that she be allowed to use the allegedly illegally seized money stolen from motorists. She has asked the state attorney general's office for an opinion on whether using the funds for her defense violates the state's asset forfeiture law. "It would be completely inappropriate for the district attorney to use assets which are the very subject of litigation charging her with participating in allegedly illegal activity to defend herself against these charges," said Lisa Graybill, legal director at the ACLU of Texas. "Texas has a long history of having its law enforcement officials unconstitutionally target racial minorities in the flawed and failed war on drugs and it is of paramount importance that those officials be held accountable." "The government must account for the misconduct of officials who operate in its name," said Vanita Gupta, staff attorney with the ACLU Racial Justice Program, who represented African-American residents of Tulia, TX in high-profile litigation challenging their wrongful convictions on drug charges. "The state of Texas has seen egregious examples of racial profiling that result from poor oversight of criminal justice officials." The ACLU of Texas is using the Tenaha case to push for asset forfeiture reform in the Lone Star State. One such bill stalled in the state legislature this year. "The misuse of asset forfeiture laws by local officials is exacerbated by inadequate oversight," said Matt Simpson, policy strategist for the group. "The legislature must squarely address these reported civil rights violations via reform of forfeiture laws that strengthen protection against unconstitutional conduct and racial profiling."
Tenaha, TX
United States

Hey, Check Out These Meaningless Statistics!

From the drug czar's blog:
According to a recent national survey, 11 percent of weekend nighttime drivers tested positive for illicit drugs - five times as many as were under the influence of alcohol.
It's just perfect nonsense of the exact variety the drug czar's office specializes in. Testing positive for drugs just means the person has drugs in their system (which could have been ingested days or even weeks before getting behind the wheel). By contrast, those who were "under the influence of alcohol" were over the legal limit at the time they were driving. The drug czar is literally comparing people who may have smoked marijuana last week to people who are drunk right now. It's insane.

And, as is often the case when drug warriors wildly misinterpret scientific data, the report itself specifically warns against drawing exactly the types of conclusions claimed by the drug czar:

The reader is cautioned that drug presence does not necessarily imply impairment. For many drug types, drug presence can be detected long after any impairment that might affect driving has passed. For example, traces of marijuana can be detected in blood samples several weeks after chronic users stop ingestion. Also, whereas the impairment effects for various concentration levels of alcohol is well understood, little evidence is available to link concentrations of other drug types to driver performance.
Is that confusing to anyone? It really shouldn’t be. But, unfortunately for us all, it is the drug czar's job not to understand or acknowledge basic facts like these. Once one comes to understand that our drug policies are routinely based on complete nonsense, it ceases to be a mystery why we achieve such dismal results.

Racial Profiling: Illinois Annual Traffic Stop Report Reprises Same Old Story

In response to complaints about racial profiling by police, law enforcement agencies in Illinois have been required to report on traffic stops since 2004. Every year, the report has found that minority drivers are asked to consent to unwarranted searches at a higher rate than whites, but that police are actually more likely to find contraband in consent searches with white drivers than minorities. The 2008 Traffic Stop Study annual report, released earlier this month, is no different.
enter at peril of profiling
The study found that minority drivers were 13% more likely to be stopped than whites, with blacks slightly more likely than Hispanics to be stopped. Blacks were three times more likely to be asked to consent to a search than whites; for Hispanics, that figure was 2.4 times. But contraband was found in only 15.4% of searches of minority-driven vehicles, compared to 24.7% of those with white drivers.

"The fact is every single year we see these same numbers," Ed Yohnka, spokesman for the ACLU of Illinois, told the Chicago Tribune. "There is just a predisposition to believe minorities have contraband... The data and the indisputable nature of this is exactly what the president was talking about the other night."

Yohnka was referring to President Obama's remarks on the arrest of black scholar Henry Louis Gates by a white police officer in Cambridge, Massachusetts, last week. As a state senator, Obama led the push for the racial profiling reports. On Wednesday night, he alluded to that work in his remarks on the Gates arrest.

One thing that is different is that the number of consent searches is on the decline. The 2008 figure of 25,471 consent searches (out of 2.5 million traffic stops) is a 33% reduction since 2004.

That's a step in the right direction, but only a small step as far as the ACLU and other civil libertarians and civil rights activists are concerned. They want the state to end the use of consent searches altogether, as has been done by the California Highway Patrol.

Search and Seizure: Supreme Court Limits Police Car Search Powers

A narrowly divided US Supreme Court Tuesday refused to expand police search powers at the expense of privacy rights, ruling that police cannot search a suspect's vehicle after the suspect has been detained and arrested absent probable cause. The 5-4 decision came in Arizona v. Gant.
car search
In that case, Rodney Gant was a suspect in a drug investigation. As Tucson police surveilled a suspected drug house where they had come into contact with Gant earlier, Gant drove up and exited his vehicle. Having checked Gant's record after the earlier encounter, police knew he had an outstanding arrest warrant for driving with a suspended license. Police arrested and handcuffed Gant, then placed him in the back of a patrol car. Police then searched his vehicle, finding a gun and some cocaine. Gant was charged with and convicted of drug possession and sentenced to three years in state prison.

Before trial, Gant had sought to suppress the evidence against him, arguing it was the result of an unlawful search, but the trial judge denied that motion. Gant appealed the verdict, winning in the Arizona Supreme Court. The state of Arizona then appealed to the US Supreme Court.

To no avail. While the Supreme Court acknowledged police powers to make a search incident to arrest, the justices noted that the purposes of such searches were to ensure officer safety and the preservation of evidence. With the suspect cuffed in the back seat of a patrol car and with no reason to preserve any "evidence" of Gant's offense -- driving with a suspended license -- the court held that police needed a search warrant to conduct a search of his vehicle.

"Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest," wrote Justice John Paul Stevens for the majority. "When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

A rare victory for the Fourth Amendment from the Roberts court.

Search and Seizure: US Supreme Court Okays Passenger Frisks During Traffic Stops

The US Supreme Court ruled Monday that police officers have the right to frisk passengers in cars stopped for traffic offenses even if they have no evidence the passenger has committed a crime or is about to do so. The ruling marks the latest in a now long line of high court decisions since the end of the Warren court -- many of them in drug cases -- that have eroded the Fourth Amendment's proscription against warrantless searches.
In its decision, the Supreme Court unanimously rejected an Arizona appeals court ruling that threw out the evidence in one such search as unconstitutionally obtained.

The ruling came in Arizona v. Johnson, in which Lemon Johnson was the back seat passenger in a car pulled over by anti-gang police in Oro Valley. After questioning Johnson in the car and being informed that he was from "a place [the officer] knew was home to a Crips gang" and that he had served time for burglary, the officer, the officer asked him to get out of the car for further questioning. Noting also that Johnson wore a blue bandana and had a scanner in his pocket, the officer "patted him down for officer safety."

During the pat-down search, the officer found a pistol and a small bag of marijuana. Johnson was charged with weapons and drug possession offenses. He was convicted at trial, but that conviction was overturned by the appeals court, which held that although Johnson had been lawfully detained when police stopped the car for the traffic violation, during the course of the encounter before Johnson was frisked, the detention had "evolved into a separate, consensual encounter stemming from an unrelated investigation by [the officer] of Johnson's possible gang affiliation." Without "reason to believe Johnson was involved in criminal activity," the court ruled, the officer "had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous."

That's not right, the Supreme Court said in a ruling authored by Justice Ruth Bader Ginsburg. Citing case law going back to Terry v. Ohio (1968), which established that police may constitutionally stop and interrogate people if they reasonably believe a crime has been or is about to be committed and that police can then frisk them to search for weapons, Ginsburg and the court ruled that such pat-down searches are allowable if police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public."

Medical Marijuana: Montana Bill to Require Patients Who Drive to Take Drug Tests or Face Revocation of Registration Card Gets Hearing

A bill that would require registered medical marijuana patients involved in a traffic accident or pulled over for a traffic infraction to submit to a blood test for THC or face revocation of their medical marijuana registration card got a hearing in the Montana legislature Tuesday. It didn't get a very warm welcome, with a number of people lined up to denounce it and only two who spoke in support.

Senate Bill 212 also sets specific THC levels in blood plasma that would create a "rebuttable inference" that the driver is impaired. According to the bill, if less than one nanogram of THC per milliliter is detected, the driver is not considered impaired. If between one and five nanograms and alcohol is also detected, the driver is considered impaired. If greater than five nanograms of THC alone, the driver is considered impaired.

Patient-drivers who are determined to be impaired would not only lose their medical marijuana registration, but would also be subject to prosecution for driving under the influence.

But according to peer-reviewed academic studies cited by the Marijuana Policy Project, drivers with less than five nanograms of THC in their blood have no greater risk of crashes than drug-free drivers. Only when THC levels are above five to 10 nanograms does the crash risk begin to rise above that for sober drivers.

The bill is the brainchild of state Sen. Verdell Jackson (R-Kalispell), who told the hearing: "I think this is a problem and we need to look at the drugs as well as the alcohol."

But curiously for someone who professed to be concerned with highway safety, Jackson made no mention of applying similar sanctions to people receiving prescription drugs, such as Oxycontin, Valium, or a host of other potentially driving-impairing substances.

At Tuesday's hearing in the Senate Judiciary Committee, medical marijuana supporters argued that there are no accurate tests for marijuana impairment, that marijuana stays in the systems of users for days (long after any impairment has vanished), and that there was no evidence Montana had a problem with medical marijuana patients on the highways.

"I have not heard of any allegation, even, of a registered Montana patient driving under the influence," said Tom Daubert of Helena, director of Patients and Families United, the state's largest medical marijuana support group. "There's no scientific basis for the standards in the bill for impairment," Daubert says. "Those who medicate with marijuana would be pretty much guaranteed to fail the test."

Montana voters approved medical marijuana in 2004. Since then, more than 1,200 people have signed up with the state registry in order to participate in the program.

Medical Marijuana: ASA Files Lawsuit Against California DMV Over Patient Drivers' License Revocation

The medical marijuana advocacy group Americans for Safe Access (ASA) filed a lawsuit Wednesday against the California Department of Motor Vehicles after it revoked the license of a medical marijuana patient solely for being a medical marijuana patient.
The plaintiff is Rose Johnson, 53, of Atwater. Johnson, a registered medical marijuana patient, had a clean driving record and no accidents in 37 years behind the wheel. But the DMV refused to renew her license on July 26 after obtaining her medical records and finding out she used marijuana medicinally.

According to the DMV, Johnson's license was revoked "because of... [an] addiction to, or habitual use of, [a] drug," thereby rendering her unable to safely operate a motor vehicle, even though no evidence existed to substantiate this claim.

"The DMV cannot simply disregard California's medical marijuana law," said ASA Chief Counsel Joe Elford, who is representing Ms. Johnson in her claim against the DMV. "When the voters of California enacted the Compassionate Use Act, they never intended to authorize the DMV to strip medical marijuana patients of their drivers' licenses," continued Elford. "The DMV should not be in the business of revoking the licenses of drivers like Ms. Johnson simply because she is a medical marijuana patient."

ASA said Johnson is not alone in losing her license. Suspension or revocation of drivers' licenses for qualified medical marijuana patients has occurred in at least eight California counties, including Alameda, Butte, Contra Costa, Glenn, Merced, Placer, Sacramento, and Sonoma.

The DMV justifies its license revocations of medical marijuana patients by calling them "drug abusers" despite no evidence to back that claim. The DMV has not taken similar blanket action against people prescribed opiates, barbiturates, sedatives, tranquilizers, or stimulants.

State and local police in California have been instructed by Attorney General Jerry Brown to respect the state's medical marijuana laws and not arrest medical marijuana patients or take their medicine. "The DMV is not under a different set of requirements than local police in California," said Elford. "The failure to uphold California's medical marijuana law is entirely inappropriate for any local or state agency."

The lawsuit was filed in Merced Superior Court. It is expected to be heard sometime in the next few months.

Search and Seizure: Florida Defense Attorneys Challenge Drug Dog "Hits"

Defense attorneys in Florida's Sarasota and Manatee counties are challenging the reliability of drug dog "hits" in drug possession and trafficking cases. So far, the tactic has produced mixed results.
drug dog
Drug-sniffing dogs are increasingly used in traffic stops. Thanks to the US Supreme Court, which bizarrely ruled that a drug dog search is not a search, no search warrant or probable cause is needed for police to sic the dogs on unwary travelers. Controlled by a police handler, the drug dogs typically circle the vehicle once or twice and "alert" their handlers if they smell drugs. That "alert" then constitutes probable cause for a warrantless search of the vehicle.

But some drug dogs are just too good to be believed. In one case reported by the Tampa Tribune, a now-retired drug dog named Talon "alerted" on every single vehicle he sniffed during a four-month period -- even though drugs were found in less than half of them.

Such results call into question the dog's reliability and can result in a successful motion to suppress the evidence in drug cases, usually leading to the dismissal of charges. That's what happened in a recent Manatee County case. Circuit Judge Johnes Riva said in a ruling the dog's record of false "hits" gave her no choice but to throw out the evidence in a drug case.

But another drug dog, Zuul, who belongs to the Sarasota County Sheriff's Office, fared better in court recently. Even though, like Talon, Zuul "hit" on almost every car he sniffed even though no drugs were found in half of them, Sarasota County Circuit Court Judge Charles Roberts ruled that his nose was reliable enough to justify searching vehicles. Roberts bought prosecutors' and deputies' arguments that in every case where Zuul "alerted," either drugs were found or people in the vehicle admitted to using or possessing drugs in the recent past. That ruling has set up an appeal that could be headed for the Florida Supreme Court.

That set well with the Sarasota Sheriff's Office, which, along with other law enforcement entities, worried that Riva's earlier ruling against Talon would set a trend in case law. More rulings like Riva's would be "catastrophic to the way we've been doing business," said sheriff's office Sgt. Brian Olree, who oversees the K-9 division.

Now, local defense attorneys are checking the reliability of at least three other local drug dogs. "I don't think any of the dogs the Sarasota sheriff's office uses are qualified to detect drugs to get probable cause for searches," Assistant Public Defender Mark Adams told the Tribune.

Defense attorney Liane McCurry, who first successfully challenged Talon's drug-sniffing acumen, told the Tribune she expects to see more challenges to drug dogs' reliability. "I think every attorney should do that," she said.

Europe: Irish Judge Balks at Unquantified Drugged Driving Test

An Irish judge last Friday threw out drugged driving charges against a young driver, saying that a positive result for marijuana in his urine sample was not specific enough to allow him to conclude that the driver was indeed impaired. Judge Kevin Kilrane of the Ballyshannon District Court in Donegal also criticized the Road Safety Medical Bureau for failing to test for the level of drug intoxication in its drug tests.

Peter Gillen was pulled over shortly after 4:00am for driving erratically, and Garda Officer Sean Flynn described him as "very shocked, unsteady, and very agitated" upon being stopped. Gillen tested negative on a breath test for alcohol, but Flynn arrested him on suspicion of drugged driving, and a urine sample Gillen provided soon after came up positive for marijuana.

That wasn't enough for Judge Kilrane to find Gillen guilty of drugged driving, which carries a harsh penalty of an automatic four-year loss of one's drivers' license. The mere presence of marijuana in Gillen's system did not show he was impaired, the judge said.

"The defendant could have been stoned out of his mind or he might have had a trace element only," Kilrane said. "At best, all you have is suspicion, and suspicion is not enough." The evidence was "too thin" to convict he said, as he dismissed the charge.

Kilrane scolded the Road Safety Medical Bureau for only testing for the presence of marijuana and not quantifying the amount present. "It is not the fault of the gardaí," he said. "It is the fault of the bureau that does not give a concentration of drugs."

US states that have "zero tolerance" drugged driving laws operate on the same standard criticized by the Irish jurist. In such jurisdictions, the mere presence of marijuana or its metabolites is sufficient to garner a conviction, without the need to show actual impairment.

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