Pot Busts At, On (or Near) the US Border
From N.O.R.M.L.
By Jeff Steinborn, Lawyer
Don’t touch my (hockey) bags, if you please
- information for our Canadian brothers and sisters
MARIJUANA IS A DRUG OF SUCH POWER THAT IT HAS
DRIVEN THE AMERICAN GOVERNMENT CRAZY. And now we’re
trying to infect our neighbors to the north with this same disease. But
the irony of the war on drugs is that virtually every step taken in its name
enhances the profits of the drug dealers who don’t get caught. So it is
with the intensifying efforts to stop marijuana from coming in from Canada.
It’s so confusing. First it was Mexico, then Asia, now Canada. And all the
time U.S. domestic growers complain: “I wish the border patrol would do
a better job. These cut rate Canadians are destroying the market.”
Consumers, of course, applaud the Canadians.
Competition is the American way, and it’s good for you. So, I
respectfully offer to our brothers and sisters in Canada, and their friends
south of the border, and any other brave soul who is thinking about running the
border, these
MYTHS AND REALITIES: LEGAL ADVICE FOR
CANADIAN (and other) POT SMUGGLERS
1. The Gauntlet: How evidence
is gathered
My Uncle Sam would frown were I to tell you how
to smuggle. I think, however, I am allowed to tell you of some of
the devices out there to trick and capture you, if only in an attempt to
persuade you to desist. Deterrence is, after all, one of the goals of law
enforcement, isn’t it?
At authorized border crossings, in simple
terms it’s the eye of the inspector, the nose of the dog, and the memory of
the computer. If you look funny, smell bad, have been crossing too much,
or are just not lucky that day, somebody will pull you over to “secondary”
inspection. At the airport, and at other places where time allows the
research, if your name has ever entered the computer for any
suspicious reason, odds are customs will pull you over.
If you are near the border there a certain things
that the border patrol will be looking for: one two or three males in a
rental car or pick up truck, particularly at night, are almost certain to be
stopped, or at least placed under surveillance. Hockey bags are considered
nearly probable cause (lawful justification to search) without more.
- Once you’re suspected you’re fish in a
barrel. Without a warrant, or even a shadow of a suspicion, the
police, at the border can:
- Search your vehicle with a dog;
- Search its contents including locked luggage,
with a dog;
- Search your person, at least to the extent of
having you remove your coat and shoes.
- And, soon to come:
warrantless dog sniffs of persons. This legal question is still up in
the air.
At remote crossings where no one could
possibly observe: There may still be such places. The only ones I hear
about are the ones that are now guarded by wireless remote sensors that detect
persons and vehicles. Although it is difficult for the sensors to
distinguish between deer and people, they find a way, often by just putting the
sensors high enough that 4-legged animals pass under them. Where there are
sensors, there are officers standing by to respond. If you set off a
sensor, it will relay to a pager in the possession of the border patrol officer
who is closest. They are never far away. They will then come looking
for you. If you are then seen by an officer who has reasonable suspicion
that you crossed the border, and that whatever crossed with you is still in the
car (or on your person if you’re walking) you may be lawfully stopped and
searched. But, if the chain has been interrupted – if you have stopped
and let someone or something in or out of the vehicle, then that suspicion
evaporates, and then probable cause is required to search you. This, in a
few words, is a summary of the complex law of border searches.
But wait! There’s one more:
the “Terry stop,” named after one of the most important cases in the history
of the definition of the “interface” between the police and the citizens
they protect. When you step outside your home, you become subject to a
Terry stop. Where a police officer has an “articulable” reasonable
suspicion that crime is afoot, s/he has the power to stop you and ask what
you’re doing. Once stopped, of course, the officer will find a way to
develop “probable cause” to search you, and that’s it. People doing
funny stuff at the or near the border will be stopped if they are seen. Period.
And then, of course, there are boats. While
the law is slightly more complicated, as a practical matter, boats can be
stopped, boarded and searched virtually anywhere, for any reason. In navigable
waters, a Coast Guard safety inspection can be conducted at the whim of the
officers.
What does this mean? It means that if you
have enough brain cells to bang together to make a spark, you find someone
dumber than you to carry the stuff across. It’s just too risky for
clever folks. But the nature of prohibition is clear: there’s
always someone dumb enough, or desperate enough, to take the risk. “Mules,”
is what the government calls them. True “mules” get a little
sentencing break. But I digress.
Unfortunately it is usually the mules that get
busted, so, if that’s you, read on. You were probably busted at random
at the official border crossing, or out in the woods because someone followed
your trail through the snow, and then matched your boots to the prints, or
because you tried to sneak over some suspicious farmer’s property or a remote
sensor carrying something on the first run. A dry run would have been a
good idea. It’s also nice if you don’t stick out like a sore thumb
sneaking across some remote border at two in the morning. But if you were
that smart you probably wouldn’t have to be reading this part now. In
the courts in Bellingham, they process about a half dozen suckers like this each
week. The same is true in Eastern Washington, and, so far as I know, and
as one customs officer told me “from Maine to Blaine.”
But, if you haven’t been busted yet, maybe you
should know a bit about the American Justice System before you decide to be a
mule.
2. The Consequences: The
American Criminal Justice System
It was, and, in some places still is, one of the
best and fairest on the Planet. But it has been compromised, contaminated,
and corrupted by the war on drugs. A few examples:
State Court:
If you are lucky enough to find yourself in the
state criminal justice system in Washington, you aren’t too bad off. You
have probably not been greedy and were caught with a relatively small amount –
less than 50 pounds, more or less. There are probably no records of you
having made repeated border crossings. The state constitution and state due
process of law still receive some respect. You may be ok.
The trial process is reasonably fair, and for
quantities small enough to keep you in state court the penalties are consistent
with the offense: For first offenders, 0 to 90 days in jail, but with the
potential for an “exceptional sentence up to 5 years if you are really bad.
Fines are usually high – in excess of $5000. Most state judges properly
view this as an economic crime and treat it as such. Big fines, not much
jail. But it is a felony. If you’re a Canadian, that means you
can’t come back to the U.S.
In the U.S. a felony is nearly an economic death
sentence. You get most of your rights back, but discretionary niceties
such as employment, insurance, or credit are often impaired. Boeing and
Microsoft won’t even consider you. Many countries won’t let you in. So
even at the state court level, it’s not something to undertake lightly.
The Federal System:
If the United States Government should take an
interest in you – well, think about those kids in the car in Jurassic Park when
the raptor broke loose. The Federal Criminal Justice System --
“the feds” -- is/are an insane, mindless, heartless, cruel
car-crushing, home seizing, family-destroying monster out of control. The
federal judges, some of them the most accomplished dedicated lawyers[1]
in their communities, have been rendered toothless by a series of legislative
and appellate judicial decisions that have given the prosecution – the police
– everything on their wish list for the last 30 years. By way of
illustration of my seemingly outrageous claims, here’s what the system looks
like if you’re a Canadian citizen, caught in the jaws of the Feds, and a few
bits of advice to go along with the view.
The arrest: At a regular border crossing,
it’s pretty tame. But if you get caught out in the woods, look out!
There’s no one there to watch. You are at the mercy of the officers.
Most of them are pretty civilized, so if you mind your manners, you probably
won’t be injured. But don’t flunk the “attitude test.”
And then there’s statements made in a panic to
try to make a desperate situation better. There’s one more important
thing to remember. “Just say ‘no’”. Don’t talk.
Whatever you say will be re-written and enhanced until it suits the officers’
needs. So shut up. Shut up. Shut up. You can say “oh
shit,” or, “excuse me officer, do you have any toilet paper?” But
that’s about it. This is so important. When the police put words in your
mouth, you have to confront those words at trial. This means you have to take
the stand, giving up your important right to remain silent, so that you can tell
the jury “I never said that!” Good luck.
After the arrest, within a very short time, you
will be interviewed by a person from “pretrial services” regarding your
personal data. The rule here is simple: say nothing even to the
pretrial services person until you and your lawyer have had the time to talk
about it. If you don’t have a lawyer, one will be provided for you.
Don’t scorn the Federal Public Defenders, and don’t ever call them
“pretenders.” Some of these folks are the very best and the most
dedicated.
Shortly after that, you will find yourself in
court, before a very polite United States Magistrate. Virtually every U.S.
Magistrate in my district is a former prosecuting attorney. (That’s what we
call “crown counsel” in the United States.) You are entitled to a
“preliminary hearing” at which the Government must present evidence (hearsay
is o.k.) establishing grounds to hold you for trial. This doesn’t take
much, but it’s your one chance to hear the evidence against you. If
your lawyer wants to waive it, or objects to any testimony at that
hearing, discharge him or her immediately – before they ask another question
or take another step on your behalf. I know this is a serious radical
move, but I can’t think of any reason other than total ignorance to pass up
your one chance to find out what evidence the government has.
You are also entitled to a “detention
hearing.” If you are charged with more than 50 kilograms (including all
the runs they think you might have made in the past) there is a presumption that
there will be “no conditions of release that will assure your attendance at
trial.”
If you’re from Canada, it’s tough. The odds
are you won’t get out. That’s right. Usually no bail, even
for two-bit marijuana cases. There are some exceptions, but not enough to write
about. Any cash you want to spend is subject to a “Nebbia” hearing,
at which you will be required to demonstrate with clear evidence that your cash
is not the fruit of a crime. If you guess wrong, they may just take the
money and keep it.
The most effective bail in the federal system is
the home of a relative who owns little else. The courts figure you won’t
leave your parents or your children without a home. But this is rare, even
for American citizens charged with drug crimes in Federal court. There is
a legal presumption of “detention” – no bail – for most drug
offenses. Less than 50 pounds of marijuana doesn’t carry this
presumption officially, but even then it’s very rare for a Canadian to make
bail on a pot charge.
So you spend your pretrial time in some jail or
detention center. Here in Seattle we call the new place the “Seatac
Gulag.” It’s not because of the way they run the place, but because of
what it’s used for. It’s well-run and really very civilized for a
prison. You won’t be raped or beaten there, and the staff seems quite
good, even progressive, but you won’t need your shades or your slicker. And
they can be petty. Here’s one example. One Canadian client of mine
can’t read without his reading glasses. They were taken from him when he
was arrested. So he can’t even read the charges against him. His
wife went to the U.S. Marshall’s office where they gave her his glasses.
She took them to the prison and delivered them to my client’s counselor.
She refused to give them to him because he had not followed the proper
procedures. As of this writing, he’s been in custody for three weeks and
still can’t read the charges against him. (There was a form he was
required to send to Canada, which, in turn had to be returned to the prison by
his wife, in the same package as the glasses.) In other words, this is not
a hotel you will like. Pettiness abounds.
To summarize, in the area of pretrial release, it
is fair to say that most offenders charged in Federal court start serving their
time the day they are arrested.
But, before we get to the sentence, --
“’No, no!’ said the Queen. ‘Sentence first--verdict afterwards’”[2]
– let’s talk about the trial process – something that is used so rarely in
Federal drug cases that even the most active Federal defense attorneys often try
only two or three cases in a year. It’s because of the trial process and
all of the incredibly coercive powers the feds now have. (I thought we
only gave them limited powers. Where the hell did all this power come
from? But I digress)
Prior to the actual trial, it used to be that
some folks would get off on what many mistakenly refer to as
“technicalities.” As my mother used to say, “the constitution is not
a technicality!!” Dismissal of a case on constitutional grounds is
pretty rare, nowadays. If a police officer thought a search warrant was
good, it was good. That’s the “good faith exception” to the warrant
requirement.
Warrantless searches conducted anywhere but in
the middle of a private residence always seem to find some justification. So
don’t expect to get off because the arresting officers used the Bill of Rights
as toilet paper. If it helps to convict you, the evidence is probably
coming in.
Then there’s the trial process itself. We
call it “trial by ambush” because the United States Government (unlike the
state governments) has no duty to disclose its witnesses, much less to make them
available for interview. Where you’re caught with the goods, this
doesn’t matter much. You know what the evidence is against you.
But if you’re charged with conspiracy (from the Latin verb meaning “to
breathe together”) you only guess who the witnesses are against you. And
what lies they may tell – that often doesn’t come out until shortly before
the witness takes the stand to testify against you.
The government has all the advantages in federal
court. Government witnesses are given huge sentence reductions, large cash
payments, freedom for their loved ones -- even new identities and new
lives in exchange for their testimony. Cooperation is the only way out of
the incredibly long sentences. The rush to “get on the bus” to give
evidence against virtually anyone of interest to the government is a silent
stampede. Every now and then a jury is offended that the testimony of a
low life scum bag witness has been purchased by the government with the dearest
of all currencies but that’s rare. Meanwhile, the defense attorney who
tries to purchase testimony with any currency, much less that ultimate one will
be promptly suspended from practice.
That’s why most discussion among federal
defense lawyers centers on sentencing issues and how to avoid the incredibly
harsh results of the Sentencing Guidelines and the mandatory minimums. We
have used the word “draconian” to describe our sentences for so long that it
has lost all meaning. Without boggling your mind with the technicalities
of this Byzantine system, its main point is that the prosecutor determines the
sentence by what crime is charged, after which the judge can only evaluate
categories and rubber stamp predetermined sentences. Yet here is where
most of the discussion goes on. Sadly, in many cases it’s a discussion
of whether the sentence should be a mandatory minimum 20 years, or the slightly
lesser guideline sentence of 18 and one half.
Here are some specifics regarding marijuana
sentencing under federal laws. At the state level, the laws change from
state to state. For information on those laws try http://www.norml.org/legal/state_laws.shtml.
Under federal laws the standards are pretty extreme: 100 plants or 100
kilos = 5 years. 1000 plants or 1000 kilos = 10 years. There are a
few exceptions, but they are far too complicated to explain. (For more
details visit the chapter on sentencing at http://www.potbust.com/
and the links I have placed there.)
And don’t look to the appellate courts for a
safety valve. The U.S. Supreme Court has recently made such shocking
rulings as the following:
United States v. Ursery, 518 U.S.
267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), ruling that when the government
takes everything you own because you have committed a crime with it or to get
it, you are not being punished.
Herrera v. Collins 506 U.S. 390
(1993), actual innocence is not grounds to review a death sentence if the
defendant already had a “fair trial.”
United States v. Watts, 519 U.S.
148 (1997), ruling that a defendant may be punished for conduct of which the
jury acquits him. And there are lots more where those came from.
Sometimes we have to medicate ourselves just to read some of the new drug cases
decided by United States Courts.
There is one way out of these insane sentences.
You can cut your sentence at least in half by cooperating. This means
providing the government with “substantial assistance” in the prosecution of
another. We call it a “5K” motion, after the section of the United
States Sentencing Guidelines which creates it. But if you want to do that,
don’t read this, and don’t call me.
3. What to do if caught
There are only two choices after being caught.
You can cooperate (snitch) and do what the police ask you to do. You can
usually make someone else pay for your mistakes. Or else, you can fight
the case and take what comes. Or, you can start by fighting and later decide to
give up and cooperate. But, no matter which path you choose, the first step is
always the same: Shut up and call a lawyer. Neither admit nor deny
anything without your defense attorney at your side. This is very
difficult, but so important. Everybody seems to feel a need to explain
themselves to the very same officers who have them at their mercy. And, if
you don’t start to babble expect to be bullied, terrorized, lied to and
manipulated. That’s what narcotic officers are trained to do. To
succeed as a narcotics officer, you have to be good at this. So if they
are busting you, you can assume they’re good at it.
In Singapore, they have a system of counsel that
it much more straight-forward: You have the right to counsel if counsel
would not impede the investigation. But, until you confess, counsel will
impede the investigation. We have a similar system here, but it’s not
spelled out quite so clearly.
If you reside in the U.S., as a part of the
initial rush, expect a certain amount of bullying of your friends and family.
Your house may be searched. Your mom’s house may be searched. Your
bank accounts will be frozen. Your home, your car, your boat, and maybe
even your lawn mower will be seized. Maybe even the sox and underwear out
of your bedroom. Be ready to deal with this very traumatic loss
emotionally without turning into a blubbering fool. The entire system is
designed with one goal in mind: to wring the most terrible testimony from
terrified and confused defendants – testimony that destroys their friends and
family, and, in the long run even them. If you weren’t ready for this
kind of pressure, you’ve got no business in the drug business.
In any event, there are many pressures in the
first few hours of your arrest – all directed at getting you to become an
informer. They hold out the prospect of bail, freedom for you or your
loved ones, and they threaten with the loss of everything – even your
children.
But, the sooner you call a lawyer, the sooner
this torture stops. Your lawyer should know how to act swiftly to legally
protect you and your friends and family from bullying, and your assets from
seizure or theft. In some cases it is necessary to “freeze” the
evidence before the government can massage it or destroy it.
Even if you want to cooperate, at the moment of
the bust, you must be strong. Whether you intend to cooperate and inform,
or to fight it out, you must have a lawyer immediately to begin either course.
Don’t play any cards until you’ve had a lawyer advise you. The
police have heard it all a thousand times. They believe none of it. But
they’ll still milk you. They are trained to get you to help them through
lies, trickery, false friendship – nothing is beneath them.
So get a lawyer. Immediately. Sorry
if this seems redundant, but it seems to be difficult advice to remember in a
crisis. But you must. This is not just some lawyer’s self-serving
crap. Ask anyone who’s been arrested. In too many cases, until
your lawyer shows up, you are a victim to be bullied; a target to be threatened;
a source to be exploited; a mouth to shove words into. If you are lucky
enough to be arrested by professional cops who don’t stoop to this sort of
thing, even they will respect a courteous request to see a lawyer.
How to find a lawyer. If you’ve
crossed the border without researching this one, you really are lame.
Sorry for the insult but, what were you thinking of? In any event, it
doesn’t matter. If you’re that dumb, you’re probably too broke to
afford a lawyer anyway. $25,000 is not an unusual retainer for those
lawyers who are familiar with the federal criminal justice system. At the
state level you might get by for $5,000 if you just want to plead guilty.
But it’s ok if you can’t afford private counsel. The often abused
Public Defenders are among the very best lawyers anywhere. Their standards
are high; their training is excellent. The sometimes higher paid members
of the “private bar” often call on them for advice. So that’s a good
place to start. You have to judge lawyers for yourself. Look at their
abilities, and, perhaps more importantly, their interest in you and your marijuana
case for yourself.
If you’d prefer retained counsel, some of whom
have a bit more time to hold your hand and explain what’s happening to you,
make sure you select one that knows the system, be it federal or state, and
who understands how marijuana cases are different from any other criminal
defense. NORML (The National Organization to Reform Marijuana
Laws) is on the Web at http://www.norml.org/.
Their state-by-state list of lawyers is a very good place to start. Or you
can call their Washington D.C. office 202 583 2200. If they do you a
favor, send them a contribution. Another good place to look is former
public defenders who have just set out in private practice. They are
usually well-trained and motivated. But you may have to explain to some of
them why it is that marijuana cases are different than all others.
Pot bust victims should approach with great
suspicion any defense attorneys who advertise themselves as “former
prosecuting attorneys.” Among them are some very fine lawyers who will go to
the wall for their pot clients. But if they quickly tell you to cooperate
in a marijuana case get a second opinion -- preferably from a career defense
attorney.
If you’re busted and just reading this now,
sorry, but you shouldn’t have undertaken this mission without a phone number
of a lawyer you have researched and believe to be qualified. And you
should have the retainer put away. Although most successful lawyers will
not take “retainers” from persons not actually in need of representation,
most will talk to you and tell you what their retainer would be, and what terms
they will accept.
You should also know that any United States
lawyer (or any person in the United States, for that matter) who takes
more than $10,000 in cash for any one case in any one year must file a
“currency transaction report” with the IRS. Further, any person who
carries more than $10,000 into or out of the United States is required to report
it to Customs. They love to bust you for this and take your money.
This is not a problem if you are paying the bill
from assets or credit for which you can account. I mean account
not just some jive story that the cops have heard a hundred times. “I
never used banks.” “I kept it in a can.” So on. If you plan on
having a friend show up at a lawyer’s office with a suitcase full of cash that
you can’t explain, you will probably have to content yourself with lawyers who
aren’t even smart enough to keep themselves out of trouble.
Even the best lawyer can’t improve much on the
rest of the program. If you’re caught “red-handed” and the search is
good the only significant remaining question is often sentence. Yes, it is
possible to go before a jury and hope that somehow that one juror who will not
convict for marijuana will sneak on to the jury. The trouble is that
people like that are usually honest. Honesty is not a survival trait for
most jurors. The prosecutor kicks them off the jury as soon as they show
their true colors. In Federal court, where the judge usually picks the
jury, it’s scary. I once worked with a group of nationally famous
lawyers in a criminal case in 1970. Despite their best efforts, the judge
picked a jury of 12 plus 4 alternates, none of whom would admit to having any
opinion about the war in Viet Nam. I didn’t make this up.
So, it’s not like Canada, where, I understand,
acquittals of clearly guilty pot people are fairly commonplace. Here in
the land of the free and the home of the brave I would equate the odds on this
as somewhere between hitting an inside straight and finding a silver dollar
rolling uphill against the wind.
CONCLUSION
If you don’t live in the United States you
probably can’t imagine the cruelty of the war on marijuana. Nor can you
imagine the Alice in Wonderland quality of some of our criminal laws and
procedures. When drugs are involved reason and civility flee from the
justice system. So don’t think for a minute that because the drug war is
fatally flawed, because there is nothing wrong with the responsible adult use of
marijuana, because our Canadian neighbors have gone well down the path of
intelligent tolerance, because the American public has voted overwhelmingly to
make marijuana a medicine – don’t be lulled into believing that it’s safe
to bring this magnificent herb into the United States. Unless you are
ready to do some serious prison time in a system that thinks weight rooms are a
luxury too good for prisoners, don’t do it.
I hope this piece is of some value to you.
This and more is available at http://www.potbust.com/.
Use it, copy it, do some good with it. Save a few good folks from being
crushed by their beastly neighbor to the south.
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