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Search and Seizure: Vermont Judge Says State Constitution Provides Protection Even if Federal Doesn't

The US Supreme Court ruled last month that police officers who violated "knock and announce" search warrant rules could use the ill-gotten evidence against defendants, but that's not good enough for at least one Vermont judge. In a Monday opinion, District Court Judge Robert Bent threw out the evidence in a "knock and announce" search where police rushed the home as soon as the door opened while they were gathering out front.

https://stopthedrugwar.org/files/texasraid.jpg
warrant needed in Vermont
Under centuries-old common law and decades of US legal practice, most search warrants require police to knock and announce and allow the resident a reasonable time to answer the door. Police who can convince a judge special circumstances require them can apply for a "no-knock" warrant. Last month's Supreme Court ruling effectively gutted the "knock and announce" requirement -- at least in the federal courts.

Vermont should hold itself to a higher standard, said Bent in the case of Ellen Sheltra, who was arrested on marijuana charges after the cops rushed her door. "Evidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law," Bent wrote, citing an earlier state case as precedent. "Introduction of such evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness and encourages official misconduct."

In their dissent in the US Supreme Court case, four justices warned that allowing police to use illegally obtained evidence would lead to police officers ignoring the law. Bent agreed. "The exclusionary remedy should remain in full force and effect," Bent wrote, "at least in our small corner of the nation."

The district court decision is not binding on other judges, but they are likely to take it into consideration in deciding similar cases. Prosecutors have not decided whether to appeal Bent's ruling to the Vermont Supreme Court, where, if it is upheld, it would become binding.

Sentencing: California Governor Signs Bill Amending Proposition 36, Is Immediately Sued

California Gov. Arnold Schwarzenegger (R) Wednesday signed into law a bill that substantially alters the state's voter-approved Prop 36, the state's "treatment not jail" law. One of the authors of the measure, which mandates treatment not jail for first- and second-time drug offenders, immediately filed suit to block the law from going into effect.

The bill, which was tacked onto a budget bill and passed last month, allows "flash incarceration" of up to five days for people who have failed to participate in treatment programs. Championed by law enforcement and drug court professionals, the new law stands in stark contrast with the initiative approved by the voters, who approved Prop 36's "no jail" provisions by a wide margin. Under California laws, substantive changes in voter-approved initiatives must be done by the voters, not the legislature.

Prop 36 coauthor Cliff Gardner filed his lawsuit Wednesday afternoon in Alameda County Superior Court. He is being represented by Drug Policy Alliance (DPA) attorney Daniel Abrahamson. "Rather than veto SB 1137, the Governor opted to engage in a legal battle over what he knows is an unconstitutional law," said Abrahamson in a statement. "We have filed a complaint in Alameda County Superior Court, and are confident that Prop 36 and the will of the people will be upheld."

But Lisa Fisher, a spokeswoman for the California Department of Alcohol and Drug Programs, told the Associated Press the state would enforce the law unless a judge orders it not to. "We think that the reforms are furthering the purposes of Proposition 36," she said. "The one thing we have learned over the years is that jail sanctions need to be part of a whole package of sanctions that an individual can expect."

Law Enforcement: Goose Creek Agrees to Pay Up, Change Ways in Settlement of Notorious High School Drug Raid Case

A federal judge Tuesday gave final approval to a landmark settlement in the case of the heavy-handed 2003 police drug raid on students at Stratford High School in Goose Creek, South Carolina. Under the terms of the settlement, the Goose Creek Police Department, the City of Goose Creek, and the Berkeley County School District will pay $1.6 million for violating the rights of nearly 150 students caught in the raid. The trio also signed a consent decree barring police from conducting law enforcement activities on school grounds absent a warrant, probable cause, or voluntary consent.

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early morning high school raid: no drugs or guns found
Caught by both school and police surveillance cameras, video of the raid helped make the case a cause celebre. The tapes show students as young as 14 forced to the ground in handcuffs as officers in SWAT team uniforms and bulletproof vests aim guns at their heads and lead a drug dog to tear through their book bags. Authorized by Principal George McCrackin because he suspected a student was dealing marijuana, the raid came up empty: no drugs or weapons were found and none of the students were charged with any crime.

"They hit that school like it was a crack house, like they knew that there were crack dealers in there armed with guns," said 14-year-old Le'Quan Simpson, who was one of the students forced to kneel at gunpoint in the school hallway and whose father served on a SWAT team.

Simpson's father, Elijah Simpson, a local deputy sheriff who has served on SWAT teams, said, "This was clearly a no-shoot situation no matter how you look at it. A school drug raid is not a SWAT situation, but that's how the Goose Creek police handled it." The police raid was unnecessarily dangerous, the older Simpson added. "It was crossfire just waiting to happen. If one door slammed, one student dropped a book or screamed, and then those guns would have gone off all over the place. Did you see the way they were swinging those guns around? That's not how you do it."

Following the raid, the ACLU brought a lawsuit on behalf of students' families charging police and school officials with violating the students' right to be free from unlawful search and seizure and use of excessive force. The lawsuit demanded a court order declaring the raid unconstitutional and blocking the future use of such tactics, as well as damages on behalf of the students. Joined by local attorneys, the lawsuit grew to include 53 of the affected students.

The American Civil Liberties Union represented 20 of them, including Simpson. "Goose Creek students now have a unique place in our nation," said Graham Boyd, Director of the

ACLU Drug Law Reform Project. "They are the only students in the nation who have complete protection of their Fourth Amendment rights of search and seizure."

Marlon Kimpson, a lawyer with Motley Rice LLC, the firm that represented most of the students, said students involved in the drug sweep must file claims by July 28. A claims administrator appointed by the court will then evaluate each student's claim and determine which students are eligible for the funds, Kimpson said.

"Any student who was searched and seized on Nov. 5, 2003, is now eligible for compensation and they have received notice of that," Kimpson told the Charleston Post & Courier. "It is now incumbent on the students to take action and have their claim considered."

Under the terms of the settlement, the affected students will divide $1.2 million among themselves, while the lawyers will pocket $400,000. Depending on the number of students who agree to the settlement, each could walk away with between $6,000 and $12,000.

The powers that be have learned a lesson, said Kimpson. "McCrackin is no longer in charge, the police have agreed to additional training and school district has vowed to change its policies with respect to the way they conduct drug raids," Kimpson said. "You must conduct drug searches according to the US Constitution. This settlement and this class-action lawsuit is notice to police officers and school officials across the nation that students don't shed their constitutional rights merely by entering a schoolhouse door."

Law Enforcement: This Week's Corrupt Cops Stories

Some New Jersey cops got too friendly with drug dealers, while a Pennsylvania park ranger and a New Mexico jail guard got caught trying to be drug dealers. Let's get to it:

In Newark, New Jersey, six police officers were indicted Tuesday on charges they warned a drug ring about police raids in exchange for drugs. The six were arrested over the last 18 months, but officials only took the case public upon their indictment. Passaic County Chief Assistant Prosecutor Jay McCann said what began as "a social relationship" between the officers and their drug-dealing contemporaries escalated into law breaking and corruption. Those arrested were Pompton Lakes officers Dennis DePrima, 30, Robert J. Palianto, 29, and Michael Megna, 34; West Milford Officer Paul Kleiber, 26; West Paterson Officer Richard Beagin, 26; and Passaic County Sheriff's Officer Gerry Ward, 46. Each was suspended and faces charges including conspiracy to commit official misconduct; conspiracy to possess narcotics; official misconduct; witness tampering and hindering apprehension. The conspiracy unraveled after authorities figured out a suspect in a 2004 drug raid had been tipped off and investigated. The drugs involved included the prescription sleeping pill Ambien, cocaine, Oxycontin, and anabolic steroids.

In Altoona, Pennsylvania, a part-time state park ranger was arrested Saturday on meth dealing and related charges. William Ickes, 61, a ranger at Blue Knob State Park was charged with three counts each of possession and delivery of drugs, as well as additional drug and weapons charges. State officials allege that Ickes sometimes sold drugs in the park while in uniform. During an April raid on Ickes' residence, police seized a pipe bomb and various guns, plus methamphetamine, marijuana, hallucinogenic mushrooms and drug paraphernalia. Ickes is jailed on a $150,000 bond.

In Albuquerque, a Metropolitan Detention Center guard was arrested Monday night on charges he conspired to smuggle heroin into the jail. Guard Marcus Urias, 19, went down after accepting a pack of tobacco, a gram of heroin, and his $150 fee from a man who turned out to be an undercover agent for the Bernalillo County Sheriff's Department. Urias faces charges of drug trafficking, conspiracy to traffic drugs, and conspiracy to bring contraband into a prison. Urias was jailed and fired.

Appeal/Book Offer: Race to Incarcerate, by Marc Mauer

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In "Race to Incarcerate," Marc Mauer, executive director of The Sentencing Project, explores the political, financial, and human toll of the "get tough" movement against crime and assesses why this policy has failed, making a compelling argument against the unprecedented rise in the use of imprisonment in the United States over the last 25 years. Race to Incarcerate also brings to light the devastating reality of disenfranchisement -- for example, 13 percent of African American men are ineligible to vote because of criminal convictions -- in ten states more than one in five black men are barred from voting because of their criminal records.

One of the main driving forces behind the US incarceration binge has been the "war on drugs." Please support DRCNet's efforts to "stop the drug war" by making a generous donation -- visit http://stopthedrugwar.org/donate/ to do so online -- donate $30 or more and you will be eligible receive a copy of Race to Incarcerate as our thanks. (Click here to read our review of Race to Incarcerate published in Drug War Chronicle last month.)

We also continue to offer the DVD video Law Enforcement Against Prohibition and the 5th edition of Drug War Facts -- add $5 to the minimum donation to add either of these to your request, or $10 to add both. Again, visit http://stopthedrugwar.org/donate/ to make your donation and place your order, or send a check or money order to: DRCNet, P.O. Box 18402, Washington, DC 20036. (Note that contributions to Drug Reform Coordination Network, which support our lobbying work, are not tax-deductible. Deductible contributions can be made to DRCNet Foundation, same address.) Lastly, please contact us for instructions if you wish to make a donation of stock.

Thank you for your support of these efforts.

Sincerely,

David Borden, Executive Director
StoptheDrugWar.org: the Drug Reform Coordination Network
Washington, DC

Editorial: Not Playing by the Rules, Not Making Sense

David Borden, Executive Director, 7/14/06

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David Borden
Call me old fashioned, but I like it when rule-makers play by the rules. I like it when the law corresponds to reality, both in wording and interpretation. I like it when laws make sense.

I don't like it when legislators thumb their noses at their constitutions to enact laws they know don't pass muster. Unpopular Alaska Gov. Frank Murkowski's marijuana re-criminalization bill, partially struck down by a Superior Court judge this week based on the state Supreme Court's standing word, is a good example. The bill signed by California Gov. Arnold Schwarzenegger to change California's initiative-enshrined treatment-not-jail law in ways that contradict the voters' choice is another.

As worrisome as methamphetamine recipes floating around the Internet may be for some, the bill signed by Michigan Governor Jennifer Granholm aiming at those almost certainly flouts the First Amendment. Are they going to sue publishers of online, academic chemistry texts that happen to include information on this legally-prescribable schedule II substance?

I don't like "legal fictions" -- definitions in the law that have to then be dealt with as if they were real when in fact they're not. The much criticized asset forfeiture laws, in many of which a mere object is the entity that gets accused of the crime (allowing the government to take property from innocent owners) rely on that fiction for their justification. Another such fiction is laws in 21 states, including another from Michigan, that categorically equate certain drug activity with child abuse -- whether a child was actually abused or not.

It's important to remember that child abuse laws are already on the books -- if a child is getting abused, some form of intervention by the law to address the situation is appropriate. But if a parent, for example, takes some methamphetamine while at home in order to stay up late to meet a critical work deadline, but without acting aggressively or neglecting the family's needs, how is that child abuse? Many people take meth or similar drugs on prescription from their doctors for very similar purposes. Doing so without a prescription is illegal, and can certainly be disconcerting. Some meth users do become unstable or violent. But are the two situations really so very different -- inherently, by definition -- for the latter to qualify as child abuse, even if no actual abusive acts ever take place?

Even when meth is being manufactured, it's fictional to equate it with abuse categorically, the legitimate dangers of meth manufacturing notwithstanding. If chemicals are being handled in a way that subjects children to harm qualifying as abuse, and if it's done intentionally or with clear, willful recklessness, then it doesn't matter whether it's meth or another drug or the stuff in those bottles underneath your kitchen sink, it's still abuse (or perhaps endangerment). But the fact that it's a drug being manufactured is purely incidental.

It's not legal hair-splitting to say that, because applying the label of "child abuse" creates an appearance that the accused is a monster who probably belongs in jail and almost certainly shouldn't be entrusted with children. But that may not at all be the case; the user may be a responsible user who takes perfectly good care of the kids. The user may be addicted and need help, but never raise a hand against a son or daughter or place them in danger. Even the dealer or manufacturer may only be trying to get by in difficult economic circumstances -- the illegal activity may be what one is doing in order to provide better for the children. That's a sad circumstance, but it's a circumstance faced by many. Disconcerting, yes, but child abuse?

The most offensive thing about the California development is that it was a coalition of law enforcement groups and drug court judges who pressed for the bill. They don't like the restrictions Prop 36 put on them. But so what? They have the right to field their own counter-initiative (with private money, of course), if they think they could win it. They lost pretty badly the first time. But the voters spoke, and the state constitution says that counts.

I don't think our law enforcers -- judges, of all people -- should disrespect the constitutions whose tenets are intended to stand over and bind them. Though they claim to hold law in reverence, in this they have trampled it. Call me old fashioned, but I don't think that's good for our country.

Bribery at Border Worries Officials (US-Mexico)

Location: 
United States
Publication/Source: 
Washington Post
URL: 
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/14/AR2006071401525.html

book talk: Race to Incarcerate, by Marc Mauer

Washington, DC, "Race to Incarcerate," book talk with The Sentencing Project's Marc Mauer. At Politics & Prose bookstore, 5015 Connecticut Ave., NW, visit http://www.politics-prose.com for further information.
Date: 
Fri, 07/21/2006 - 8:00pm - 8:30pm
Location: 
5015 Connecticut Ave. NW
Washington, DC 20008
United States

Overkill: The Rise of Paramilitary Police Raids in America

Location: 
United States
Publication/Source: 
report from Cato Institute
URL: 
http://www.cato.org/pub_display.php?pub_id=6476

New Jersey Racial Profiling Archive

This section presents the racial profiling documents released by the New Jersey Attorney General's office on Monday, November 27, 2000, amid controversy and acrimony.

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