AVOIDING
AND DEFENDING POT BUSTS
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The
Pot Bust Book Written By A Lawyer & Some Very Interesting Advice
This
is a Very Big Report,
But well worth the wait to load
Written
By A lawyer
AUGUST
2002©
Jeff
rey Steinborn
Avoiding
& Defending Pot Busts Page 2 of 2, A large report from a lawyer,
TABLE
OF CONTENTS
I.
INTRODUCTION
II.
HOW TO GET BUSTED
- SEARCH
WARRANTS – THE KEY TO YOUR DOOR
1.
Home Hygiene
2. The Sacred Function
of the Search Warrant
3. Sources of Probable Cause
for Search Warrants: Informants
a.
General information about informants
b.
The anonymous informant
c.
The citizen informant
d.
The “criminal milieu” informant
4. Police Investigative
Techniques that Generate Warrants
a.
Discrediting police opinions and investigations
b.
Surveillance of grow equipment shops
c.
Power usage
d.
Infrared thermal imagers
e.
Smell of marijuana
f.
Garbage searches
g.
Phone trap investigations
h.
Surveillance of suspected
grow ops
i.
Emergencies and other random events
5.
The Search Warrant was Based on False Information – So What?
a.
Does the Constitution require that challenges be permitted?
b.
What inaccuracies jeopardize a warrant?
i.)
Lies
ii.)
Omissions
iii.)
Whose lies or omissions?
iv.)
Consequences of inaccuracies
c.
Procedures: Getting a
Franks Hearing
d.
The Franks hearing
e.
Future development of the rule
6.
Other Sub-facial Challenges to Search Warrants
a.
Information tainted by prior unlawful police conduct
b.
Trespass onto private property
B.
WARRANTLESS SEARCHES
1.
Knock and Talk and Consent Searches
2.
Privacy outside your home
a.
Terry stops
b.
Vehicle
searches
III.
CONSEQUENCES
1. Sentencing Generally
2. Sentencing Issues:
generic marijuana presentence report
3. Forfeiture:
current practices
IV.
CANADA
AND SMUGGLING
1. The Gauntlet:
how evidence is gathered
2. The
Consequences: The American Criminal
Justice System
3. What to do if Caught
V.
CONCLUSIONS
I.
INTRODUCTION
Author’s 2002 introduction:
A
word about attitude: With the
Congress of the
United States
talking about passing a law that would prohibit even advocating something most
of our allies and neighbors have done – regulating and decriminalizing
marijuana -- it’s easy to be
angry at anyone who is ready to side with the Patrons of Prohibition. In
past versions of this article and in other papers I’ve written I have insulted
law enforcement. I have concluded
that these insults are inappropriate. Here
are the reasons: There are law
enforcement officers out there who deserve the insults. Some really are war
criminals by any definition. If you
are one of those – and you know who you are -- if you are out there
terrorizing harmless folks and abusing the power given you by the state ignore
this apology. It’s not for you. To
the rest of you law enforcement folks who read this, I do apologize.
There is an increasingly visible group of law enforcement officers who do
in fact conduct themselves professionally in this war on drugs, even when making
marijuana arrests. They may have no choice but to enforce even the bad laws;
still they do it professionally, with no meanness or malice, no bullying or
threats to crush families. Those
officers should be encouraged. They
should know that their customers support them.
Even if they are questioning or arresting you don’t be a jerk.
Treat them with respect – preferably silent respect. You
may be surprised to find that they will do the same to you.
Preface:
Marijuana
is a drug of such enormous power that it has driven the government mad. Where
the prosecution of marijuana offenders is concerned, no expense is too great for
the government. No allocation of
valuable resources such as manpower, equipment, or jail space is beyond the
reach of a police agency dedicated to crushing and fleecing anyone who comes
close to pot. In my state,
Washington, local law enforcement agencies think nothing of sending a dozen
officers, and a large number of vehicles, including planes and helicopters, on a
week long foray across the state and even into Oregon, just to bust a couple of
pounds of pot. Meanwhile in many
counties in
Washington
, methamphetamine accounts for 75% of all referrals to Children’s Protective
Services. But no matter the
relative harm, marijuana arrests are climbing towards one million a year –
more than all other drugs and violent crimes put together.
And, despite the clear fact that the war on marijuana is a footless
fraud, no end appears in sight. So
you’d better get ready.
Marijuana
cases are different. You
and your lawyer need to understand that marijuana prosecutions are different
from any other criminal action for at least four reasons:
First, no other type of law violation has spurred police to
develop such intrusive investigative techniques or to habitually bully and
terrorize an entire class of harmless citizens; second, when you fight a
marijuana prosecution it is the defendant, not the government who occupies the
moral high ground; and third, when you try a pot bust case, the only
victim in the courtroom is the defendant, which means that fourth
Marijuana cases make good appellate law because the court can often free the
defendant on constitutional grounds without turning loose a dangerous criminal.
They are also different because
America
’s fastest growing indoor hobby/cottage industry has provoked law enforcement
to respond aggressively with intrusive investigation techniques – some
employing space-age technology and many bringing the eyes, ears and noses of law
enforcement into the home, a place American citizens have long considered to be
at the hard core of the right to privacy. Remarkably,
enforcement against indoor cultivation has become an issue of primary importance
now that the Drug Enforcement Agency and local law enforcement have prioritized
the “war” on domestic marijuana. In
the State of
Washington
, for example, where the large majority of the marijuana,
Washington
's number one cash crop, is grown indoors, a well-publicized $5000 reward awaits
informants who will turn in marijuana farms.
Remarkably, no advertised reward encourages those who turn in murderers,
rapists, robbers, child molesters or criminals who prey on the vulnerable.
Even dealers of the harder drugs have no advertised bounty on their
heads. How can this be?
Marijuana is not a dangerous drug. Its
*use is not a danger to society. Extreme
measures to enforce the marijuana laws are not justified.
The resultant pressures on the privacy of the home are difficult to
reconcile with traditional American values such as tolerance, liberty, or
pursuit of happiness. But, privacy
is a fragile right. No one ever got
elected for defending it. It comes
as no surprise that it retreats in the face of three decades in which everyone
has indulged the drug warriors. More
alarmingly, however, as the following discussion will explain, even the usually
robust rights of private property are no longer secure.
The entire U.S. Constitution has retreated in the face of the assault.
Any defense attorney – for that matter, any reasonably industrious
federal agent – knows that for those who depend for protection upon the U.S.
Constitution, few places remain that are truly private.
In many state courts, however, there is room for creative and aggressive
response to the war on privacy. Indoor
marijuana gardens are a relatively new phenomenon.
Many of the intrusions they provoke have not yet been tested under state
constitutional theories. Where
there has been a test, states have often found enhanced protection in their own
constitutions. No defense attorney
practicing in state court can afford to overlook those few remaining
opportunities to have someone in a robe say the word “suppressed.”
Below is an examination of law enforcement techniques I have frequently
encountered in marijuana cases – and often encountered in other types of cases
– and the major legal as well as factual issues that arise from them.
This article suggests some of the most common state constitutional
issues, as well as some of the non-constitutional issues a client and his or her
lawyer will face in defending a marijuana prosecution.
The discussions are not intended to be comprehensive; hopefully they will
be inspirational. Although we
haven't thought of everything,
Washington
leads the country in arrests for indoor growing, and we have been forced to
pioneer some of these defenses. This
is not intended to be legal advice. Rather
it is a brief and summary discussion of the rules that apply when a person
becomes a customer of the criminal justice system because of involvement with
marijuana.
In defending these cases and making these arguments emphasize the simple
fact that the Bill of Rights should not be viewed as an impediment to
effective law enforcement. This
fundamental democratic principle has received so little support from our leaders
and jurists that the American Bar Association recently felt it necessary to
conduct a study to reaffirm its continued validity.
Their findings are particularly relevant to the lawyer who would defend
the privacy of the home: the constitution, and in particular the
exclusionary rule,
do not impede effective law enforcement.
Rather, the committee of prosecutors, police, lawyers and judges
concluded, they protect fundamental rights at a very low cost, while encouraging
the professionalism that is essential to good law enforcement in a Democracy.
II.
HOW TO GET BUSTED
A.
SEARCH WARRANTS – THE KEY TO YOUR DOOR
1. Home Hygiene
As
you will see from what is written below, it’s not that hard to get a search
warrant for a private residence. If
that happens, you had better hope that the police find no money, no guns, no
needles or hard drugs, no financial records or records of safe deposit boxes, no
links to your associates in the marijuana industry, no evidence of prior grows
or unexplained wealth and no fancy toys. It’s
also nice if there are no “indicia of dealing” such as scales, baggies,
lists of who owes what, diaries of past grows or past deals, letters between
associates, or instructions to helpers or distributors.
See Appendix A for a government-generated list of what cops
consider “indicia of dealing.”
If you are growing in the same house with your legal gun
collection, or where your spouse, your mother, or your children reside, you are
already two strikes down. Guns and
vulnerable victims give the police way too much leverage – sometimes so much
that you will even be forced to give up valid defenses rather than risk the
enhanced penalties that guns bring, or the suffering and torture that will
surely befall you loved ones if you have allowed them to get in harm’s way.
Is that clear enough? NO
FIREARMS!!! Your permit to carry or possess a firearm won’t help you if the
gun is found anywhere near drugs.
If you are breaking any of these rules, be sure to put away quite a bit
of extra money for your lawyer, your family’s lawyer, and your family’s
support while you are away for a long time.
Meanwhile, here is some information about search warrants, how police get
them, and what you can do about them.
2. The Sacred Function of
the Search Warrant
The home is the last place where the law still provides some degree of
privacy. If the crime is being
committed in your home, police will probably need a search warrant to get in and
find it. Even the smell of
marijuana detected by an officer when s/he knocks on your door and you foolishly
open it does not allow police to enter your home without a warrant.
Exceptions to this rule will be discussed later, under “warrantless
searches.”
The
law of search and seizure is all about privacy.
Remarkably, although polls suggest that this is one of the most highly
valued rights among American citizens, most voters seem to accept radical
changes in the rules of privacy which can only be viewed as placing that
fundamental right on the endangered species list.
According to the United States Constitution, police may not enter and
search a private residence or its “curtilage”
(except for the unblocked path to the front door) without prior judicial
approval in the form of a search warrant. How
do they get these warrants?
Nearly all search warrants come from tips.
Sources of tips – informants – come in infinite forms.
Informants are much more prevalent in the marijuana trade than in other
situations, since most marijuana growers are non-violent and wisely refuse to
treat informers in ways that are customary if not mandatory when it comes to
other crimes. This benign attitude
allows many to make highly paid careers out of rooting out and turning in
(sometimes after ripping off) grow rooms.
Anyone who spends much time around the criminal justice system knows that
the
United States
has reversed its moral compass on this
issue. Informants have been
universally detested throughout history. We
all remember Judas. Dante reserved
the innermost circle of Hell for informants.
Benedict Arnold was the eponym for the lowest form of biped life in all
of
North America
. Linda
Tripp will be reviled for all of history.
Yet today, informing is a major part of the growth industry.
Tax-free and inflation proof. Rewards
in five to six figures are common. The government buys the testimony it
wants/needs with freedom, cash and who knows what else.
Without informants our justice system would grind to a halt like pulp
mills without trees. But, I digress . . . .
This is how the government gets the key to your door:
The Fourth Amendment to the United States Constitution, and the
constitutions of the states all require, in some form or another, that searches
of private places be conducted only where a neutral and detached magistrate or
judge has concluded that probable cause exists to search, and has issued a
search warrant. Search warrants are
issued based upon sworn statements from law enforcement officers.
The statement is usually in the form of an affidavit, but maybe a
recorded telephone call to the judge. A
search warrant based upon an affidavit that does not establish probable cause is
not valid. This means that the
evidence it produced should be suppressed – should not be admitted in court.
A
“facial” challenge to a search warrant – usually a challenge to the
adequacy of the facts contained within the “four corners” of the affidavit
– is usually essential in defending most marijuana grow cases.
In many cases it is not only the front line of defense, it is the only
defense. If the evidence comes in
you’re convicted.
If you are desperate enough, you should be able to find an issue in
virtually every search warrant. However, recent developments in Federal
constitutional law leave application of the Fourth Amendment to these cases a
largely academic endeavor. By this
I mean errors, defects, or governmental misconduct that will result in actual
suppression of the fruits of a search warrant under federal law are rare.
If you are busted by the feds, you will need a specialist in federal
search and seizure law to guide you through this contorted area of the law.
By comparison,
Alice
in Wonderland seems simple and straight – forward.
Things are not quite so bleak in state court, where some jurists still
remember the prophetic admonition of Mr. Justice Douglas:
We
are not dealing with formalities. The
presence of a search warrant serves a high function.
Absent some grave emergency, the Fourth Amendment has interposed a
magistrate between the citizen and the police.
This was done not to shield criminals, nor to make the home a safe haven
for illegal activities. It was done
so that an objective mind might weigh the need to invade that privacy in order
to enforce the law. The right of
privacy was deemed too precious to entrust to the discretion of those whose job
is the detection of crime and the arrest of criminals.
Power is a heady thing; and history shows that the police acting on
their own cannot be trusted.
McDonald
v.
United States
, 335
U.S.
451, 455-56, (1948).
In other words, for the process to work, the magistrate must be something
more than a "rubber stamp" for the police who want to conduct a
search.
3. Informants who will bust
you: Sources of probable cause for
search warrants
a. General information about
informants:
Few indoor marijuana cultivation cases commence without an initial
tip from an informant. Informants come in
many categories. Any two-bit
criminal who finds him/herself in trouble with the law can trade his cage for
the freedom of a harmless pot outlaw. There
are usually no consequences. They
should be branded as traitors and banished from civilized society.
Some power company employees, who may be allowed to trespass in order to
read meters or repair equipment, have made informing a second, (and more
profitable) career.
The various shipping companies must all be viewed with suspicion.
This writer has had many clients whose packages appeared “suspicious”
to UPS (“Ur Privacy
Sucks”) employees.
Although they maintain regular relationships with law enforcement, and
law enforcement frequently lectures them on what to look for, they are not
considered agents of the government. That
means they can open any package any time for any reason.
If they find contraband, they contact the police, who then get a warrant
– after the real search has taken place.
But it’s O.K. They’re
“private actors.” The
constitution applies only to the government and its agents.
The misconduct of private actors does not result in suppression of
evidence.
What to do if busted by a “private” company?
Bring them in. Using your
discovery rights, expose the relationship between them and the police.
Explore whether their conduct violates local laws or constitutions
regarding the right of privacy. If
it does, sue them. If their
conduct violates local privacy laws, demand that they be prosecuted.
Let the local public know that the company does not honor the privacy of
its customers. It’s not
defamation -- it’s true.
Landlords are always a problem. If
you conspire with them, they have too much to lose (their property) so they will
often turn against you. If you
don’t conspire with them, they’ll usually turn you in if they catch you.
You have to use your ingenuity to deal with this situation.
A landlord does not have authority to bring police onto the private areas
of property you rent without a warrant. But
the landlord’s statement by itself may be enough to get a warrant without any
police participation. And, if your front door is accessible without passing a
gate or a no trespassing sign, the police can simply come to your door at the
landlord’s request and get a whiff.
Just remember. They’re in
it for the money.
Jealous, sanctimonious, or otherwise nosy neighbors bring down many a
farm. Money doesn’t motivate
them. Because they are often only
anonymous sources that inspire the police to try to get a whiff, you never find
out who they are. There’s
not much you can do about them. But
it never hurts to be a good neighbor.
And, of course, there is no informant so common as the rejected lover or
business associate. If you made the
mistake of sharing your private business with someone who later turns on you –
well, so it goes. If you weren’t
so greedy or lazy you’d have done it all by yourself and there would be no one
to snitch you off.
Another problem is ego. Proud
but vulnerable growers still haven't learned not to show off their work. This is
a basic survival lesson: If, like
most law-abiding pot growers, you are not ready to send quick, graphic messages
to the informant community, your only choice (and the safer and wiser one) is to
send them no messages at all. Zip
your lips. Can you do it?
If not, I seriously recommend keeping a short strip of duct tape in your
purse or wallet. When you feel the
urge to talk about your grow, pull the tape out and place it over your lips.
If that doesn’t work, and you become the victim of an informant,
you’ll need some defenses. Here
is a summary of the relevant law of informants:
Under the United States Constitution, the test for whether probable cause
is established in a search warrant is an easy one for the police to meet.
An informant’s tip is evaluated under the “totality of
circumstances” test of Illinois v. Gates, 462 U.S. 213 (1983).
Under this test, with minimal confirmation of a few innocuous facts in
the tip, the police can secure a virtually airtight search warrant for a private
residence based upon little more than the pointing of an anonymous finger.
Many state courts have rejected this rule, instead requiring that an
informant’s tip must still satisfy the more structured two-prong “Aguilar-Spinelli”
test, which requires the affidavit which supports the search warrant to
demonstrate both the informant’s basis of knowledge, and credibility.
See, e.g., State v. Jones, 706 P.2d 317 (
Alaska
1985) (relying on article 1, § 14 of the state constitution); State v.
Jackson
, 688 P.2d 136 (
Wash.
1984) (article 1, § 9); State v. Horwedel,
674 P.2d 623 (Or.App. 1984) (Or. Rev. Stat. '
133.545(3); Or. Const. article 1, § 9); State v. Kanda, 620 P.2d
623 (Haw. 1980) (article 1, § 7).
Then there’s the “good faith” exception to the exclusionary rule.
If the warrant is later found to lack probable cause, if the officers
relied on it in “good faith,” the evidence still comes in.
If your state has not yet accepted this rule, your lawyer may get some
use out of the brief on the subject I have attached as an appendix to this
article.
Informants come in several different varieties.
The credibility or reliability of informants must be established by facts
in the affidavit, which would support the magistrate’s conclusion that
the informant is telling the truth. The
officer’s opinion that the informant is reliable is not enough.
That the informant is named in the affidavit, disclosed to the judge, or,
at least, known (and identified) by the affiant,
is significant. See, e.g.,
State v. Northness, 20 Wn.
App. 551 (1978), (defining categories of informants).
b. The anonymous informant.
You will probably never find out who this is.
His/her word is not sufficient to establish probable cause without more.
State v. Bantum, 1 P.2d 861 (
Wash.
1931). Thus the police will have to
do some work and provide some “corroboration” of the informant’s tip.
If the target is a grow, police will go to the house.
If the front porch is not protected against trespass they will come to
the door to try to get a whiff. They
will look for covered windows, suspicious vents, potting soil, and other
indications of indoor gardening discussed below, and listed in the sample search
warrant affidavit in Appendix A.
In these cases, the challenge by the defense will focus on the
"corroboration" provided by the police to bolster the otherwise
inadequate tip. Is it just
innocuous? Is it really evidence of crime, or are the police just attaching
suspicion to everyday common items and occurrences? This is dangerous in a free
society. As the sage Captain Jean
Luc Picard of the Starship
Enterprise
once observed, “the road from legitimate suspicion to rampant paranoia is very
much shorter than we think.”
Don't always accept the word of the police when an anonymous informant is
claimed. One clever defense
investigator recently reviewed all search warrants done by a particular officer,
(they should be a matter of public record), and established a pattern which
proved that the officer's informant was nothing more than an "imaginary
friend."
c. The citizen informant.
Citizen informants are ordinary citizens who stumble on or are the
victims of a crime. Where probable
cause relies on the word of non-professional "citizen"
informants, the requirement of a showing of reliability is somewhat relaxed.
Some allegations must nevertheless be made to show that it is a true
"citizen" informant, who may then be presumed reliable.
State v. Chatmon, 515 P.2d 530
(
Wash.
1973), (police must still interview the informant and ascertain such background
facts as would support the inference that he is reliable).
The affidavit should reveal the reasons for the citizen informant being
present at the scene of the crime, since most persons present where drugs are
seen are criminals, not innocent citizens.
State v. Rodriguez, 769 P.2d 309 (
Wash.
App. 1989). As Professor LaFave
observed:
[C]ourts should be cautious in accepting the
assertion that one who apparently was present when narcotics were used or
displayed is a presumptively reliable citizen-informer . . . .
[T]his is because as a general proposition it is an informant from the
criminal milieu rather than a law-abiding citizen who is most likely to be
present under such circumstances. This
is not to suggest that a person giving information about the location of
narcotics may never qualify as a citizen-informer, for it is sometimes
possible to show with particularity how a law-abiding individual happened
to come upon such knowledge.
1 LaFave
SEARCH AND SEIZURE (1987), at 728. (Emphasis
supplied).
State v. Ibarra, 61 Wn. App 695
(1991), is hopeful. This case
reiterates the Northness categories of
informants, observing that "the concern that the informant information may
be coming from an anonymous troublemaker remains when the citizen informant is
unidentified. Therefore, the
State's burden of demonstrating the credibility of a citizen informant is not
necessary lightened when the informant remains unidentified to the
magistrate." 61 Wn.
App. 699. This case holds that the
reliability/credibility of the alleged "citizen informant" was not
established, particularly because the reason why the informant was at the scene
of the crime/location of the crime was not given.
The case holds that a generic recitation of the officer's conclusions is
not sufficient to raise the requisite inference that the informant had a valid
reason for wishing to remain anonymous.
d. The “criminal milieu”
informant.
Some courts recognize the reality that informants from the "criminal
milieu" –criminals in plain English -- are likely to lie and should be presumed
unreliable: "It is to be expected that the [criminal] informer will not
infrequently reach for shadowy leads, or even seek to incriminate the
innocent." Jones v.
United States
, 266 F.2d 924, 928 (D.C. Cir. 1959).
Law enforcement officials and prosecutors are at least privately aware of
the likelihood that criminals will lie to stay out of trouble.
For example, the Hon. Stephen Trott, when he
was in charge of the criminal division at the United States Department of
Justice wrote:
Criminals are likely to say and do almost anything to get what they want,
especially when what they want is to get out of trouble with the law.
In my personal firsthand experience of over 18 years as a prosecutor,
this willingness to do anything includes not only truthfully spilling the beans
on friends and relatives, but also manufacturing evidence, soliciting others to
corroborate their lies with more lies, double-crossing anyone with whom they
come into contact, including - and especially - the prosecutor.
A drug addict can sell out his mother to get a deal; and burglars,
robbers, murderers and thieves are not far behind.
They are remarkably manipulative and skillfully devious.
Many are outright conscienceless sociopaths to whom "truth" is
a wholly meaningless concept. To
some 'conning' people is a way of life. Others
are just basically unstable people.
Trott,
The Successful Use of Snitches, Informants, Co-Conspirators, and
Accomplices as Witnesses for the Prosecution in a Criminal Case 2,
(United Sates Justice Department 1984). Mr.
Trott is now a judge on the United States Court of
Appeals for the Ninth Circuit. His
updated article was recently published at 47 Hastings L.J. 1381.
The title is Words of Warning for Prosecutors Using Criminals as
Witnesses.. He has recently
reiterated these same feelings in a written opinion. United States v.
Bernal-Obeso, 989 F.2d 331 (9th Cir.
3/29/93
), addresses credibility of informants as trial witnesses:
“Our judicial history is speckled with cases where informants falsely
pointed the finger of guilt at suspects and defendants, creating the risk of
sending innocent persons to prison.”
Bernal-Obeso is the exception.
Courts have demonstrated rare ingenuity in developing theories by which
to support the veracity of these inherently unreliable sources of information.
The police may rely on, among others, the following common methods of
showing the veracity of the criminal informant:
(1) A "track record"
of virtually any prior cooperation with the police.
This should not be interpreted to mean that if an informant
predicted the sun would rise, and then it did, his word may now be presumed
reliable. State v. Fisher,
639
P.2d 743 (
Wash.
1982), but see, dissent. Note
that a "controlled buy" should not establish reliability unless the
affidavit alleges the informant claimed he could buy at that location, and then
did. State v. Casto,
692 P.2d 890 (
Wash.
App. 1984); State v. Steenerson, 688
P.2d 544 (
Wash.
App. 1984).
(2) A “statement
against penal interest,” State v. O'Connor,
692 P.2d 208 (Wash. App. 1984). The
theory is that when people admit to crimes, it must be true.
This theory should not be applied where it doesn't fit (although it often
is). The statement must be genuinely
against penal interest. Note
here that the naming of the informant in the affidavit is not a passport to
reliability; rather, it is a prerequisite to a finding that a
statement against penal interest supports an inference of reliability.
1 W. LaFave, SEARCH AND SEIZURE, at 644.
This exception should not be used to make a person who confesses to some
crime a more reliable source of information than an honest citizen.
(3) The informant is
highly motivated to provide accurate information, and will not lightly lead
police down blind alleys. State
v. Bean, 572 P.2d 1102 (
Wash.
1978); State v. Estorga, 893 P.2d 813
(
Wash.
1991); these cases showcase judicial logic at its thinnest.
A criminal caught red-handed who then makes a deal is presumed to be
reliable? This is dangerously
dishonest logic. Often
"prospecting" -- law enforcement's own term for leading police down
blind alleys in the hope of getting lucky and finding something incriminating --
is an informant's only hope.
(4) Merely giving the
name of the informant does not establish reliability.
State v. Sieler, 621 P.2d 1272
(
Wash.
1980).
Many search warrants for indoor grows rely almost entirely on the word of
a criminal milieu informant. Where
the "full-court press" is necessary to the defense of the case
investigative opportunities here are many.
When dealing with a criminal milieu informant, the lawyer should check
possible suspects for recent arrests or convictions.
Where there are no clues, check search warrants
in the same jurisdiction for similar warrants or warrants by the same officer.
Then interview other targets of similar searches to see if one name of a
suspected informant comes up twice. Then
interview that one. Often the
informant will have been materially misquoted.
Perhaps he first misled the police before deciding to "tell the
truth" about your client. There’s always something there of value.
4. Police investigative
techniques that generate warrants
a. Discrediting police
opinions and investigations
Most drug search warrant affidavits contain a routine laundry list of
things that drug dealers routinely keep in their residences – according to the
officer’s experience. An example
of this is attached as Appendix A. Under
federal law, if there is probable cause to believe that you are involved in drug
dealing anywhere on the planet that by itself is probable cause to search your
residence. That means when the feds
bust you selling on the street, growing in a rented building, smuggling in a
boat or at the border, they will come and search your house, usually
immediately. They may also
search you parents’ house, your ex spouse’s house, or your children’s
house. And the search will be
probably be legal.
If the state busts you, it depends where you live.
In
Washington
the mere recitation of an officer’s conclusions about what drug dealers keep
in their homes is not enough to get a warrant.
There must be some specific information suggesting that the evidence
sought will be in the place to be searched – some specific evidence tying the
place to be searched to the specified illegal activity.
The case is State v. Thein, 138
Wn.2d 133, 977 P.2d 582 (1999). This
was one of my cases. The most interesting thing about the case was the attitude
of the Washington Supreme Court when we brought this case before them. Despite
the fact that federal law was uniformly against us, the court instantly picked
up on the issue and ran our way with it. If
you are in a state other than
Washington
, and this issue hasn’t been decided, it should be raised.
Have your lawyer call me, or else you can call or email.
The weight of police observations contained in search warrant affidavits
may also be minimized by defense investigation.
Check whether all of the details are accurately reported.
Sometimes a series of superficially harmless errors in reporting by
police officers seeking warrants may form a pattern suggesting intentional
misleading when viewed as a whole. Argue
that every mistake in this particular warrant has the affect of enhancing
probable cause. The odds would be
that if the mistakes were genuine, and random, at least half of them would
detract from probable cause. As I
will discuss later, that is the burden: inaccuracies must be intentionally
misleading before they result in suppression.
Indoor marijuana cultivation investigations have incorporated a variety
of new investigative indicators, tools and techniques.
Some common police techniques are discussed below.
A thread that seems to run through all of the information offered by
police in support of probable cause to search for indoor farms is the tendency
to equate conduct consistent with criminal activity with conduct actually
probative of criminal activity. Heat
escaping from a building, higher than average power consumption, covered windows
or other attempts to protect privacy, even the presence of gardening equipment
such as pots and potting soil, or purchasing something from a gardening store --
all of these innocuous events are often pointed to by police as evidence of
criminal activity.
The Washington Supreme Court's well-reasoned opinion in State v.
Jackson, 102 Wn.2d 432, 439, 688 P.2d 136 (1984) may be useful
here:
The independent police investigation should point to suspicious activity,
"'probative indications of criminal activity along the lines suggested by
the informant." Merely
verifying "innocuous details", commonly known facts or easily
predictable events should not suffice to remedy a deficiency in either the basis
of knowledge or veracity prong. Corroboration
of public or innocuous facts only shows that the informer has some familiarity
with the suspect's affairs. Such corroboration only justifies an inference that
the informer has some knowledge of the suspect and his activities, not that
criminal activity is occurring. Corroboration of the informer's report is
significant only to the extent that it tends to give substance and verity to the
report that the suspect is engaged in criminal activity.
(Citations omitted.)
United
States v. Mendonsa, 989 F.2d 366 (9th Cir.
1993) is helpful here in that it, too, requires
something more than corroboration of innocent details, even in federal court.
b. Surveillance of grow
equipment shops
Particularly
troublesome here is the recent tendency to place stores selling gardening
equipment under surveillance, then to follow customers to their homes and
attempt to establish probable cause. “Operation
Green Merchant,” as it was called, is an alarming trend in law-enforcement.
Grow shops are like the watering holes in the desert.
The predators hang out there, waiting for their prey to come to them. To
the credit of police, this technique actually generates leads without snitches.
But it has its dangers in a free society.
Gardening has become a common form of recreation in
America
. Its popularity, including the
popularity of legitimate indoor gardening is exploding.
Thus, not only does this investigative technique raise an issue of the
chilling effect upon protected legitimate conduct, it also casts doubt upon
police observations, which are as probative of a legal indoor garden as of an
illegal one.
If the police spot you at a grow shop, they will investigate you. If your
license plate does not connect to any prior record of drugs or association with
someone with a record, they might ignore you. But, on a slow day, even the
innocent looking shoppers get followed home.
The next step is to sneak around your neighbor’s yard in the dead of
night trying to get a whiff of your crop. In
many neighborhoods, this can lead to some unfortunate and even deadly
confrontations. In many parts of my
state, folks just shoot at things that move around in the night where they’re
not supposed to be.
Law enforcement will invariably attempt to persuade the courts that when
you buy these lights you must be growing marijuana since only marijuana is
valuable enough to be grown under lights. This
is a clearly and demonstrably false premise.
Across the country modern hi-tech gardens big and small refute this
dangerous misrepresentation. In the
unlikely event that your community has no local experts on legitimate indoor
agriculture, the American Orchid Society, the Indoor Light Gardening Society of
America, the world wide web, and most of the major national/international light
bulb companies, are but a few of the many good sources of evidence to refute
this dangerous lie.
c. Power usage
Examination of power consumption records has become a common
investigative tool since indoor cultivation relies heavily on electricity. If
your use is high, the cops say that’s probable cause.
If your use is low, cops say that’s probable cause, too, because you
must be stealing the power. The
problem is, if you steal the power, not only are you a thief, but power company
employees easily detect it. In the course of lawfully searching for the power
tap they will bring police with them and whatever you’re growing will be
discovered. The solution to this
dilemma is simple: don’t be
greedy. One or two lights are
really all you need unless you are growing for the Green Cross.
If you’re in this for the money, be prepared to face the consequences
– sometimes unbelievably harsh. Under
Federal law 100 rooted plants of any size = a mandatory five year sentence.
If you find yourself in court with the power bill issue there are many
arguments that can be made, some of them quite novel.
I have concluded that I will not share these ideas with my
law-enforcement readers. Contact me
or have your lawyer contact me and I’ll be happy to share a few ideas.
In addition to questions regarding their probative value, police seizure
of power records may raise constitutional and statutory issues.
In
Washington
state, the Privacy Act prohibits seizure without a written statement of
"articulable suspicion." Wash.Rev.Code
' 42.17.314 (codifying In re Rosier, 717 P.2d 1353 (
Wash.
1986); State v. Maxwell, 791 P.2d 332 (
Wash.
1990), (applying the statutory protection to the search warrant process, while
refusing to rule on the constitutional issue); State v. Butterworth, 737
P.2d 1297 (
Wash.
1987) (specifically declining to rule on the Constitutional issue).
There is an argument that such a seizure of power records is
unconstitutional because it violates individual privacy rights.
In an age where computer technology makes every small bit of recorded
information available almost instantaneously, realistic protection of the
fragile right of privacy requires that prior judicial approval precede search or
seizure of information regarding matters occurring within a citizen's home.
The seizure of power records is for the purpose of securing evidence of a
crime; the evidence is of a nature which reflects the private activities of a
citizen within his or her home, and about which the citizen has a reasonable
expectation of privacy. See,
Hearst Corp. v. Hoppe, 580 P.2d 246 (
Wash.
1978). In Hearst,
the Washington Supreme Court observed, (in a non-criminal context):
Every individual has some phases of his life and his activities and some
facts about himself that he does not expose to the public eye, but keeps
entirely to himself or at most reveals only to his family or to close personal
friends. Sexual relations, for
example are normally entirely private matters, as are family quarrels, many
unpleasant or disgraceful or humiliating illnesses, most intimate personal
letters, most details of a man's life in his home, and some of his
history that he would rather forget."
(Emphasis supplied).
580 P.2d at
253, quoting, Restatement (Second) of Torts, '652 D at 383 (1977).
An interesting side issue here comes from the fact that pot growers often
divert (steal) power to keep high power bills from alerting the authorities.
Where a diversion is suspected, power companies will install
"comparator" meters, which show that not all power being used by a
residence is flowing through the meter. Where
this takes place, argue first that the comparator meter requires a warrant, and
second, that probable cause to search for power theft does not constitute
probable cause to search the entire house, since power is stolen outside the
house, before the wires reach the meter.
d. Infrared thermal imagers
Modern technology allows law enforcement to monitor surface temperatures
of residences by flying over in a helicopter, or driving by at a distance.
Where police observe what they consider to be "excessively
high" levels of heat escaping from a residence, they will point to that
factor as a part of probable cause. Many
defenses are possible:
It's a search. In
Washington
, State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994) holds that a
search warrant based upon probable cause must precede the use of a thermal
imager on a private residence. In State
v. Binner, Walker, and Walker,
Harney
County
(
Oregon
) Judge Yraguen ruled that the use of a thermal
imager was a search under the Oregon Constitution.
Until recently, the federal law is to the contrary.
That has changed. In Kyllo v. United States, 533
U.S. 27 (2001) the United States Supreme Court surprised us by ruling that the
search of a private residence with a thermal imager is a search requiring a
warrant. Nevertheless, these
devices are used. I believe that
their use is still subject to attack. The
warrants for thermal imagers are usually constitutionally defective. I’m not
going to disclose the defects here, but if you have such a case, keep in mind
that there may be a constitutional issue even if the police secured a warrant
for the use of the device. And
there are other arguments:
It’s unreliable. In
United States v. Kerr, 876 F.2d 1440 (9th Cir. 1989), the court
declined to rule on the search issue, observing that the information from the
thermal imager had been of limited probative value.
An informant, a drug dog, or even an officer, whose information was
suspect, would not be tolerated as a source of probable cause.
Neither should this device. The
results of this device are inherently unreliable, as well as ambiguous.
Local experts can assist an attorney in demonstrating that heat radiating
from buildings, even in "excessive" amounts, whatever that may mean,
may reflect a number of things, only one of which is unlawful.
Poor insulation, a sauna, a legitimate indoor garden, the color of the
exterior wall, the direction of exposure, shelter, openness to wind or sun, or
even the material from which the wall is constructed, are all variables which
would affect the external temperature of a building wall.
An engineer who is trained in the use of a thermal imager, (if he is not
in the employ of law enforcement) can testify that it is not reasonable to draw
any inferences regarding criminal conduct based upon amounts of heat radiating
from a building.
In one case this writer received a tape of a thermal imager fly over
where the officers were recorded as they observed a target building.
“That’s it! I see the
heat!” But when they conducted
the raid, all they found was an abandoned shack with windows and doors gone.
The “heat” they saw, and upon which they based their successful
request for a search warrant, was a figment of their wishful imaginations. In
other words . . .
The device is like a Ouija® board:
subject to manipulation and misinterpretation by poorly trained,
unethical or suggestible operators.
Again, this is a matter of reliability.
By using this ambiguous information as probable cause, both the risk and
reality of intrusion into the privacy of innocent persons are increased to an
intolerable level. In a surprising
number of cases investigated by this writer no grow room was found where law
enforcement had predicted -- based upon their use of thermal imager technology
-- that one should be. Poor
training, too much enthusiasm, or even outright fabrication are among the
explanations for the many failures of this technology.
Must American citizens refrain from any kind of indoor gardening in order
to protect themselves from warrants based upon rumor and suspicion?
Further, even when the device is properly operated, and its results
accurately reported, these results are inherently equivocal, and therefore lend
themselves to law enforcement officers who seek to undermine the magistrate's
function by passing off conclusions as facts, and elevating their suspicions to
probable cause. Compare U.S.
v. Penny-Feeny, where heat radiating from
building was "consistent with" marijuana grow, with U.S. v.
Kerr, 876 F.2d 1440 (9th Cir. 1989) where lack of heat radiating
from building was consistent with marijuana farm because "marijuana growers
often insulate their growing areas."
Investigating cases with these devices is a complex subject.
You must try to get a copy of the tape, if any, made by the device.
Ask the court to order that the device be made available to you for
inspection and testing. Demonstrate
to the court the inherent unreliability of the device.
Use of the military. The
thermal imager is often used by the military, at the request of local
authorities. Where the military
have been involved, another universe of defense is opened up.
With very little notice to the public, the military has crept into
civilian law-enforcement for the first time in recent history.
Courts seem ready to stretch the "posse comitatus"
act -- the law that prohibits use of the military--to permit this exception
where marijuana is involved. This,
too, is a subject ripe for litigation, but too complex to address here.
If you have a case with no other defense this one is ripe for the
picking. The use of the military is
increasing at an exponential rate. They
are practicing with marijuana cases, but once they get their technology and
systems down, and they get the courts to approve it, you can expect the
floodgates to open.
The government is vulnerable here. In one case I know of the state used
military aircraft to follow marijuana grow suspects all over the state. A
lengthy investigation produced over 7000 pages of documents, and only a
smattering of marijuana plants. This took place in county where the vast
majority of referrals to the Children’s Protective Service were for
methamphetamine-related problems. When
the citizens of this county find out how the government is spending their money,
we may see some changes in prioritites.
And yes, if you think that plane is following you, you may be right.
e. Smell of marijuana
Another common piece of evidence in search warrants is the allegation
that someone detected the odor of marijuana.
If the smell of a contraband item is distinctive and the person who
smells it is qualified to distinguish it, that smell provides probable cause.
State v.
Compton
, 538 P.2d 861 (
Wash.
App. 1975). Even where the officer
was wrong, but believed in good faith that he was smelling marijuana, this may
yet establish probable cause. State
v. Remboldt, 64 Wn.
App. 505, (1992). But note here:
in states where marijuana is a legal medicine, the smell of marijuana
coming from a private residence is not evidence of a crime.
In the future, we must argue, it takes more than just the smell to get a
warrant.
If you do have to deal with a smell case, there are a few things that can
be done if you can afford to hire an expert.
Even where your budget is low, factual issues can be important.
Some judges have become suspicious of smell evidence.
For example:
Smell experts can testify that marijuana is difficult to distinguish from
other pungent plants, that smell is not directional, and that the officer had
inadequate training to identify that which he smelled or locate its source.
Physical evidence which casts doubt on the officer's observations, i.e.,
distance from plants, filters, negative ion generators, wind direction,
topography, etc.
The analogy to the Ouija board comes to mind.
If the officer claimed his Ouija board had
never been wrong, could it provide probable cause?
One frequently encountered situation involves a farm so well protected
from the escape of a smell that it is incredible that the officer smelled it,
yet the claim is made, and marijuana is found.
It may well be that the officer had to trespass into the curtilage
before getting the telltale whiff. Neighbors,
footprints, and hidden surveillance cameras, are among the all too rare sources
of information that might establish this trespass.
If a trespass can be established, a following section discusses the
applicable law.
f. Garbage searches
Searches of garbage have become a favorite way to develop probable cause
to search a residence. Federal law
permits warrantless searches of garbage.
California
v.
Greenwood
, 486
US
35, 100 L.Ed.2d 30, 108 S.Ct. 1625 (1988).
Whether this permission extends to actual chemical analysis of items
found in the garbage, such as Kleenex, discarded medicine containers, or other
personal matters is still unclear. In
another context, it seems to be forbidden.
In United States v. Jacobsen, 466
U.S.
109, 80 L.Ed.2d 85, 104 S.Ct. 1652 (1984), federal agents acting without a
warrant performed chemical tests on a package which had been previously opened
by employees of a private company. The
Jacobsen Court
held that the search and seizure of the package were reasonable because they
were limited in scope to the extent of the private search.
The court then addressed the warrantless testing of the substance found
within the lawfully seized package:
The question remains whether the additional intrusion occasioned by the
field test, which had not been conducted by the Federal Express employees and
therefore exceeded the scope of the private search, was an unlawful
"search" or "seizure" within the meaning of the Fourth
Amendment.
.
. .
A chemical test that merely discloses whether or not a particular
substance is cocaine does not compromise any legitimate interest in privacy. . .
. Thus, governmental conduct that can reveal whether a substance is cocaine, and
no other arguably "private" fact, compromises no legitimate privacy
interest.
80 L.Ed.2d
at 100-01. Thus, chemical analysis
that could reveal an arguably private fact would constitute a search
requiring prior judicial approval.
Such a case is United States v. Mulder,
808 F.2d 1346 (9th Cir. 1987). In Mulder,
the court suppressed evidence discovered during sophisticated laboratory testing
that might have revealed a "private fact":
We consider [Jacobsen] determinative of the instant case.
The facts here are sufficiently different from those in Jacobsen
that we do not believe its "field test" exception to the warrant
requirement can be extended to the case at bar.
First of all, this case does not involve a field test, but a series of
tests conducted in a toxicology laboratory several days after the tablets were
seized. Secondly, the chemical
testing in this case was not a field test which could merely disclose whether or
not the substance was a particular substance, but was a series of tests designed
to reveal the molecular structure of the substance and indicate precisely what
it is. Because of the greater
sophistication of these tests, they could have revealed an arguably private
fact. . . .
While the circumstances of the visual search and seizure did not infringe
the fourth amendment, and undoubtedly provided probable cause to seek a warrant,
these circumstances do not justify a further extension of the Jacobsen
field test exception to the warrant requirement. Accordingly, the judgment of
the district court is reversed, and the cause is remanded for further
proceedings.
808 F.2d
1348-49. See also, United
States v. Upton, 763 F.Supp 232 (1991).
g. Phone trap
investigations.
Some police agencies have taken to placing phone traps and pen
registers on the phones of suspects. This
leads to other suspects whose phones are also monitored.
These devices don’t record conversations; they just record who calls
and who is called.
After about a year they take the collective results and make charts about
who calls whom. It doesn’t take too many calls to become a suspect.
Then the investigation comes down.
If the police managed to get a warrant for your house based on this,
let’s hope that you have followed the rules of hygiene.
If not you will need a lawyer. One technique that worked in one of my
previous phone trap cases might work for you.
In this case the police had identified two dozen different locations they
suspected. They got warrants for some of them, the rest they managed to search
by using a “knock and talk.” (This
technique is discussed later in this writing.)
My investigator contacted every residence that was searched and
interviewed the occupants. The picture that developed was terrifying.
Out of 24 residences searched, only two grow rooms were discovered.
But in the course of the investigation nearly half of the individuals
contacted were subjected to bullying that shocked even the prosecutor.
Picture a bad movie about the Nazis from about 1941.
Drug dogs leaving turds on the couch while
the officers laugh. Citizens treated to gratuitous violence and terrorism beyond
belief. My case turned into a
misdemeanor over night.
h. Surveillance of
suspected grow ops.
Where
police suspect a grow operation but don’t know who all is involved, they may
show patience in their investigation. Periodic
drive-by surveillance over the course of several months is not unusual.
Where that doesn’t yield results a camera will be placed in a
neighbor’s yard or in a disguised surveillance vehicle parked in the
neighborhood. License numbers and faces of all persons coming and going from the
suspected residence will be recorded. Some
of these cameras are remarkably small and virtually impossible to detect.
If you spot the camera, don’t let on. Resist the temptation to walk up
and look at it, or to parade in front of it wearing Richard Nixon masks.
If the police see that you are on to them, they will simply wait until
they see you leaving carrying bags or other things that could contain plants,
and then stop you. Once you are out
of the house, your protection from warrantless search is considerably less.
How you deal with the problem if you come across this kind of
surveillance is not something that a lawyer can advise you about.
Suffice it to say that any suspicious activity that looks like
dismantling the grow or taking out some of the product will result in aggressive
action by the police.
When it comes time to defend the case be sure to interview the neighbor
who has allowed the police to spy on his neighbor using the privacy of his
residence to conceal it. It will be
necessary to inspect his home to get a better understanding of the perspective
of the camera.
i.
Emergencies and other random events.
Murphy’s
law states: “If something can go wrong it will.” Anyone who lives in the
real world knows this is not wry humor; it is a basic law of probability. For
the grower this means “if someone can stumble on it, they will.”
Fire and other emergencies, as well as meter readers, tax assessors,
landlords doing repairs, and nosy neighbors must be anticipated.
If the fire department enters your home without a warrant, as they will
if they are called, whatever they see is fair game.
Medical emergencies also provide an opportunity for strangers to spy on
you. If the landlord comes in
illegally it still doesn’t result in suppression of the evidence.
Nosy neighbors, contractors, and displeased landlords are not limited by
the rules that supposedly restrict the police.
They can trespass, break and enter, and do pretty much what they want in
search of information about what
you are doing in your home. When
they tell it to the police, you become fair game, even if the information is
gained by means that would be unavailable to the police.
Any time any person calls 911 about your address, the police will be
there shortly. Even if it’s an
accident. They will want to come
in, and they probably will. I have
had a rash of cases lately where neighbors called 911 because they heard
shouting in the house. When the
police arrived, they came in and smelled pot.
Be grateful if your neighbors don’t panic when they hear you watching
your sports team screw up. (Maybe
if you’re not from
Seattle
you can’t understand that).
5.
The search warrant was based on false information – so what?
a. Does the Constitution
require that challenges be permitted?
You would think that any lie by anyone in the body of a search warrant
would be grounds to suppress the evidence.
That is not the rule. If the
informant lies, it probably doesn’t matter. If the cop lies about something
important and you can prove it, you have a chance.
As a general rule, the warrant is judged by the words within the
"four corners" of the face of the affidavit.
The rule is not absolute. Certain
challenges to warrants which appear on their face to be valid are grudgingly
permitted. They are called
“sub-facial” challenges.
The most frequent avenue, and the most difficult, involves a challenge
based upon misrepresentations in the affidavit which have the result of
misleading the magistrate who issues the warrant.
The
Washington
rule on this subject began with State v. Goodlow,
11 Wn. App. 533, 535, 523 P.2d 1204 (1974):
[A] defendant is entitled to a hearing which delves below the surface of
a facially sufficient affidavit if he has made an initial showing of either of
the following: (1) any misrepresentation by the government agent of a material
fact, or (2) an intentional misrepresentation by the government agent, whether
or not material. . . .
However, once such a hearing is granted, more must be shown to suppress
the evidence. Evidence should not be suppressed unless the trial court finds
that the government agent was either recklessly or intentionally untruthful.
A completely innocent misrepresentation is not sufficient . . . . [E]vidence
should not be suppressed unless the officer
was at least reckless in his misrepresentation.
Even where the officer is reckless, if the misrepresentation is
immaterial, it did not affect the issuance of the warrant and there is no
justification for suppressing the evidence. . . . However, we conclude
that if deliberate government perjury should ever be shown, the court need not
inquire as to the materiality of the perjury. . . .
The rule we announce today is intended only to test the credibility of
government agents whose affidavits or testimony are before the magistrate. The
two‑pronged test of Aguilar v. Texas, 378
U.S.
108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 . . . sufficiently tests the credibility
of confidential informers. Consequently, defendant may not challenge the truth
of hearsay evidence reported by an affiant. He may, after a proper showing,
challenge any statements based on the affiant's personal knowledge, including
his representations concerning the informer's reliability, his representation
that the hearsay statements were actually made, and his implied representation
that he believes the hearsay to be true.
This was a practical rule, encouraging truthfulness and professionalism
in the process by which the police gain access to a citizen's castle.
Search warrants are an area where truthfulness and professionalism need
some encouragement. For example,
after a study of police conduct made while he was a prosecuting attorney,
one author concluded that the temptation for police to distort facts in
search warrant affidavits rather than lose convictions was so strong that rules
governing searches "should serve to deter, rather than to encourage
submission to the strong urge to commit perjury." Grano,
A Dilemma for Defense Counsel: Spinelli-Harris
Search Warrants and the Possibility of Police Perjury, 1971 U.
Ill.
L.F.
Another
commentator observed:
Though commentators are not in agreement as to the extent of police
perjury, . . . it does seem fair to say that 'the threat of police perjury is
much greater than most courts are willing to acknowledge.'
1 LaFave
SEARCH AND SEIZURE at 704.
A recent study by a special committee of the American Bar Association
reached conclusions which would also argue for the prophylactic rule of State
v. Goodlow.
After a study which considered the opinions of law enforcement as well as
the defense bar, the Dash Committee concluded that the constitution, and in
particular the exclusionary rule, does not impede effective law enforcement, but
rather that it protects fundamental rights at a very low cost, while encouraging
the professionalism which is essential to good law enforcement in a Democracy.
Nevertheless, the rule we live with is much less prophylactic.
The United States Supreme Court rejected the rule of absolute suppression
where perjury was demonstrated, and adopted the more forgiving rule we must work
with today. In Franks v.
Delaware, 438
U.S.
154, 155-56, (1978) the Court held:
[W]here the defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant's request.
In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the evidence,
and, with the affidavit's false material set to one side, the affidavit's
remaining content is insufficient to establish probable cause, the search
warrant must be voided and the fruits of the search excluded to the same extent
as if probable cause was lacking on the face of the affidavit.
Id.
, 98 S.Ct. at 2676-77.
b. What inaccuracies
jeopardize a warrant?
i.) Lies
Franks addresses this question specifically.
The defendant must show "that a false statement knowingly and
intentionally, or with reckless disregard for the truth was included by the
affiant in the warrant affidavit." There
is a clear difference between this and the Goodlow
rule where suppression could result upon the showing of (1) any
misrepresentation by the government agent of a material fact, or (2) any
intentional misrepresentation by the government agent, whether or not material.
Under the current rule, the government is only responsible for
inaccuracies where the defendant can show either a specific intent to mislead,
or reckless disregard for whether or not the magistrate is misled.
Negligent misleading, even if it is clearly material or even critical,
does not require suppression. The
difficulty of meeting a burden which requires a showing of the state of mind of
an officer who may be a professional liar is obvious.
Without commenting about the difference between the Goodlow
test and the Franks test, Washington approved the latter in State
v. Sweet, 23 Wn. App. 97, 596 P.2d 1080
(1979).
ii.) Omissions
Franks did not discuss the question of omissions
which may have the same misleading result as affirmative misrepresentations.
Nevertheless, most courts have assumed that misleading omissions could
also result in suppression. In State
v. Cord, 103 Wn.2d 361, 693 P.2d 81 (1985), our supreme court observed
that:
[t]he
Franks test for material misrepresentations has also been extended
to material omissions of fact.
United States
v. Martin, 615 F.2d 318 (5th Cir. 1980);
United States
v. Park, 531 F.2d 754, 758‑59 (5th Cir. 1976).
The court declined to adopt the more demanding test of People v. Kurland,
28 Cal.3d 376, 618 P.2d 213, 168 Cal.Rptr. 667
(1980), cert. denied, 451 U.S. 987 (1981).
Kurland
held that:
negligent omission of a material fact requires insertion of
the fact omitted into the affidavit. If the affidavit then does not support a
finding of probable cause, the warrant is void and the evidence obtained is
excluded.
Cord,
at 103 Wn.2d 368.
Nevertheless, it appears that, where material omissions are found, and it
is further found that their omission -- and their misleading impact -- was
intentional or at least reckless, the "add and retest" formula appears
to be the law. See, e.g.,
United States v. DeLeon, 979 F.2d 761, 763
(9th Cir. 1992); State v. Garrison, 118 Wn.2d 870, 873 (1992):
If. . . the false representation or omitted material is
relevant to establishment of probable cause, the affidavit must be examined.
If relevant false representations are the basis of attack, they are set
aside. If it is a matter of deliberate or reckless omission, those omitted
matters are considered as part of the affidavit. If the affidavit with the
matter deleted or inserted, as appropriate, remains sufficient to support a
finding of probable cause, the suppression motion fails and no hearing is
required. However, if the altered content is insufficient, defendant is entitled
to an evidentiary hearing.
iii.) Whose lies or
omissions?
Franks allows recourse only when the misrepresentation is that of
a government agent. Informants are
not government agents. In rare
cases it may be possible to show that the informant's relationship with the
government was so close that the informant may be considered a government agent
for fourth amendment purposes. State
v. Thetford, 109 Wn.2d 392, 745 P.2d 496,
(1987).
Nor can the police insulate one officer's misstatement merely by relaying
it through an officer/affiant personally ignorant of its falsity.
United States
v. DeLeon, 979 F.2d 761, (9th Cir.
1992).
Probable cause may not be enhanced in the process of communication
between one officer and another. This
is the holding of Whiteley v.
Warden, 401
U.S.
560, 568 L.Ed.2d 306, 91 S.Ct. 1031 (1971):
Certainly police officers called upon to aid other officers
in executing arrest warrants are entitled to assume that the officers requesting
aid offered the magistrate the information requisite to support an independent
judicial assessment of probable cause. Where,
however, the contrary turns out to be true, an otherwise illegal arrest cannot
be insulated from challenge by the decision of the instigating officer to rely
on fellow officers to make the arrest.
iv). Consequences of
inaccuracies
If it is shown that an affiant was intentionally or recklessly misleading
exclusion of the evidence will result only if the false statements were
necessary to the finding of probable cause.
Where the offending act is that of omission, the same rule applies,
although in this context it is the intent to mislead, rather than the intent to
omit which triggers the exclusion.
United States
v. Colkley, 899 F.2d 297, (4th Cir.
1990).
Worthy of note here is that a misrepresentation adequate to require
suppression under Franks cannot be avoided by the
"good faith" doctrine of United States v. Leon,
468 U.S. 897 (1984), since Leon expressly stated that its holding
left Franks untouched.
c. Procedures:
getting a Franks hearing
The first step here is to get a judge to order a Franks
hearing. To accomplish this, the
defendant must make a "substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth,
was included by the affiant," and that "the allegedly false statement
is necessary to the finding of probable cause. . . ."
Franks, at 438
U.S.
155-56. The showing is difficult:
To
mandate an evidentiary hearing, the challenger's attack must be more than conclusory
and must be supported by more than a mere desire to cross examine.
There must be
[1]
allegations of deliberate falsehood or of reckless disregard for the truth, and
those allegations must be accompanied by
[2]
an offer of proof.
[3]
They should point out specifically the portions of the warrant affidavit that is
claimed to be false; and they should be
[4]
accompanied by a statement of supporting reasons.
[5]
Affidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
[6]
Allegations of negligence or innocent mistake are insufficient.
[7] The
deliberate falsity or reckless disregard whose impeachment is permitted today is
only that of the affiant, not of any nongovernmental informant.
[8]
Finally, if these requirements are met, and if, when material that is the
subject of the alleged falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to support a finding of
probable cause, no hearing is required.
438
U.S.
at 171.
Important here is State v. Casal,
103 Wn.2d 812, 699 P.2d 1234, 1238 (1985) where the court en banc
held that fairness requires that the defendant's burden under Franks
to make a threshold showing be reduced where "the defendant lacks access to
the very information that Franks requires for a threshold showing
of falsity." See, also,
State v. Thetford, at 109 Wn.2d 403:
Although
Franks requires a substantial showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit before a defendant is entitled
to an evidentiary hearing, Franks also holds that the showing need
only be preliminary. Thus, defendants are not required to prove their charges by
a preponderance of the evidence before being entitled to a Franks
hearing. It is only at the hearing itself that defendants, aided by testimony
and cross examination, must prove their charges by a preponderance of the
evidence. See Franks v.
Delaware
, 438
U.S.
154, 156, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978);. . .
Professor LaFave
comments:
One
thing is clear: in a case involving
an anonymous informant, the defendant should not be deemed to have failed in his
"threshold showing" merely because he has no information as to whether
the informant lied to the officer-affiant (no Franks violation) or
the officer-affiant lied to the magistrate.
"A number of . . . courts have acknowledged this dilemma in
anonymous-informant cases and have refused to apply Franks so
inflexibly as to make hearings unattainable" in such circumstances.
Another possible way of dealing with this predicament is to afford the
defendant discovery on grounds short of those required under Franks
for an evidentiary hearing.
2 LaFave,
SEARCH AND SEIZURE (1987), at p. 45-46 of 1993 pocket part.
Most courts will not accept live testimony as a part of the proffer.
Affidavits are the usual format. ER
104(a) allows the court to dispense with the Rules of Evidence, except for
privilege.
Your proffer is a matter of your own ingenuity.
The blatant cases are easy. More
difficult are the cases where the misrepresentations are more significant in
their totality than individually. Here is an example of a presentation form I
have used:
THE
AFFIDAVIT: "
Clark
brought up to 'Skeeter' the subject of a grow
operation he helped maintain in the Maltby area
(marijuana grow)."
THE
TRUTH:
Clark
told Skeeter he wanted to purchase marijuana, and Skeeter
said he didn't have any, but maybe could get some later.
Asked where he was getting it, "[h]e said that, through the
conversation, that he was getting it from the same place that he was getting it
from and whatnot like that."
Clark
admitted that Skeeter made no mention of any
particular location more specific than "the same place."
THE
AFFIDAVIT: "
Clark
knew about this as he had previously helped 'Skeeter'
in the maintenance of the marijuana plants and had been to the growing location
numerous times."
THE
TRUTH: Clark stated that he had
only been there once, did not help with maintenance, and had not told Detective
Bales that he had been to the grow operation numerous times.
He also stated that he had never seen anyone pick up any marijuana at the
Defendant's residence.
THE
AFFIDAVIT: "[T]hese outbuildings were indicated
by
Clark
as being where the plants were normally grown."
THE
TRUTH:
Clark
stated specifically that he had only seen marijuana in one building.
d. The Franks hearing
Franks
provides:
[At the hearing] the allegation of perjury or reckless
disregard [must be] established by the defendant by a preponderance of the
evidence.
This
means that the defendant's initial burden is to prove not only that the
challenged statements were in fact false, but also that their inclusion amounted
to perjury or reckless disregard for the truth.
Where the challenge is to omitted facts, it must be shown that they were
omitted with intent to mislead, or with reckless disregard for whether or not
the affidavit was misleading in their absence.
United States
v. Colkley.
For some time, the applicable rule acknowledged the fact that the state
of mind of the officer would always be difficult to prove, and that therefore,
on some occasions, recklessness may be inferred from the critical nature of the
statement or omission. In his
dissent in State v. Cord, Chief Justice Williams observed:
The materiality of the omission to the finding of probable
cause is the threshold issue. Nonmaterial, peripheral omitted facts have no
effect on the determination of probable cause and are not entitled to review.
However, once a fact is determined to be material, it is very difficult to
justify its absence. If inclusion would affect the probable cause determination,
then it should be included.
As
noted in United States v. Martin, 615 F.2d 318, 329 (5th Cir.
1980): [I]t will often be difficult
for an accused to prove that an omission was made intentionally or with reckless
disregard rather than
negligently unless he has somehow gained
independent evidence that the affiant had acted from bad motive or recklessly in
conducting his investigation and making the affidavit. Nevertheless, it follows
from Franks that the accused bears the burden of showing by a
preponderance of the evidence that the omission was more than a negligent act. It
is possible that when the facts omitted from the affidavit are clearly critical
to a finding of probable cause the fact of recklessness may be inferred from
proof of the omission itself. (Italics
mine.)
State
v. Cord, at 103 Wn.2d 372. See, also, United States v. Namer,
680 F.2d 1088, 1094 (5th Cir. 1982). (Materiality and recklessness are closely
related. When the misrepresentation
is critical to the finding of probable cause, "the fact of recklessness may
be inferred from the [misrepresentation] itself.")
This rule, which on its face makes good sense, was adopted by the Court
of Appeals in State v. Jones, 55 Wn.
App. 343, 777 P.2d 1053 (1989). Unfortunately,
the rule was short-lived. In State
v. Garrison, 118 Wn.2d. 870 (1992), the Washington Supreme Court, En
Banc, with Justices Utter and Anderson not participating, adopted a rule based
upon dictum
in United States v. Colkley, 899 F.2d
297, (4th Cir. 1990):
To prove reckless disregard of the truth, as is defendant's burden,
defendant relies solely on State v. Jones, 55 Wn.
App. 343, 777 P.2d 1053 (1989) which seems to hold that an inference of reckless
disregard must be made from the omission of facts "clearly critical to a
finding of probable cause". The Court of Appeals relied on State v.
Jones, supra, and dicta in United States v. Martin,
615 F.2d 318, 329 (5th Cir. 1980). . . .
Relying on such an inference to establish reckless disregard is not
proper. The court in United States v. Colkley,
899 F.2d 297, 301 (4th Cir. 1990) cogently recognized the error in such
reliance: "[S]uch an inference collapses into a
single inquiry the two elements ‑ 'intentionality' and materiality'
‑ which Franks states are independently necessary.
The test, according to Colkely,
is whether the affiant had an intention to mislead.
Since the facts omitted in Colkley
were not material, and therefore not "clearly critical" to the
probable cause determination, it didn't matter, and the rejection of the rule
which would allow an inference of recklessness in certain circumstances is but dictum.
Nevertheless, dictum in Colkley
became law in Garrison. The
defendant must prove that omissions were either made with the intention to
mislead, or made with reckless disregard for the misleading consequences of the
omission. Remarkably, suppression
will not result, even if the omission was clearly critical to a finding of
probable cause, unless something can be shown about the affiant's state
of mind. This may be an impossible burden, although it may be approached
tangentially by arguing that the affiant had reasons to doubt, or in fact
"entertained serious doubts as to the truth of his [allegations].
United States
v. Williams, 737 F.2d 594 (7th Cir. 1984).
Recklessness is shown
where
the affiant "in fact entertained serious doubts as to the truth" of
facts or statements in the affidavit.
Davis
,
at 694 (quoting St. Amant v. Thompson,
390
U.S.
727, 731, 20 L. Ed. 2d 262, 88
S. Ct.
1323 (1968)). Under
Davis
, such serious doubts can be shown by (1) actual deliberation on the part of the
affiant, or (2) the existence of obvious reasons to doubt the veracity of the
informant or the accuracy of his reports.
State
v. O'Connor, 39 Wn. App. 113, 118,
692 P.2d 208 (1984). O'Connor
and its progeny remain good law, and may still be of value in arguing that the
clear materiality of the fact gave the affiant "obvious reasons to doubt. .
. ."
Having established intentional or reckless manipulation of the truth, you
have still not achieved your goal of suppression.
Clearly, the affidavit must be reconstructed, with the perjury stricken,
and the material omission added. Here
is where a secondary burden of proof becomes significant.
The initial magistrate's decision to approve a warrant is ordinarily
reviewed deferentially at every level. The
law favors search warrants and close cases are decided in favor of the warrant. State
v.
Jackson
, 102 Wn.2d 432, 688 P.2d 136 (1984). In
other words, search warrants, on their face, are presumed to be valid.
But what of an affidavit which is shown to be materially misleading?
Does the presumption still favor the warrant?
Although the issue was not before the Garrison court, it
was nevertheless addressed:
The challenged information must be necessary to the finding of
probable cause. Franks v.
Delaware
, 438
U.S.
154, 156, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). The Court of Appeals' statement
confuses materiality or relevance as it relates to establishment of bad motive
with the separate inquiry whether the information is necessary to the
probable cause determination. See
United States
v. Reivich, 793 F.2d 957 (8th Cir.
1986). A court finding "materiality" in the sense that an omission may
be said to rise to the requisite level of misrepresentation under Franks
may think it has made the second Franks finding and may invalidate
a warrant after concluding only that the additional information might
have affected the probable cause determination and not that the supplemented
warrant could not have supported the existence of probable cause. Reivich,
at 962. See, Colkley, at 301
("[o]mitted information that is potentially
relevant but not dispositive is not enough to
warrant a Franks hearing."
118 Wn.2d at
875.
It is unfortunate that our state supreme court chose to venture into this
area without the benefit of adequate briefing.
Strong arguments support the position that where intentional or reckless
misleading has taken place, the presumption which favors search warrants is
vitiated, -- in fact, capsized -- and the matter should be dealt with as though
there were no warrant: the
presumption should favor suppression. State
v. Buccini, 810 P.2d 178 (Arizona Supreme
Court, En Banc, 1991) so holds. In Buccini,
a consent search was followed by a search based upon an affidavit which the
trial court found to be materially misleading.
The court held:
Although
in most instances a magistrate's finding that sufficient probable
cause exists to issue a search warrant will not be overturned unless it is
clearly erroneous, this rule does not apply when a trial court reviews
an affidavit that was submitted to the magistrate and later found to have been
supported by false statements. . . . Under
these circumstances, the trial court must undertake an independent review of the
effect of the false statements on probable cause because "the question
turns on the consequences of a fraud on the issuing magistrate which that
magistrate was not in a position to evaluate."
810 P.2d at
183. (Emphasis in original,
citations omitted.)
The
Buccini court continues:
The
rule in non-Franks cases considers the general presumption of
validity of a search warrant and the deference given to a magistrate's
determination of probable cause in concluding that in a "doubtful or
marginal case a search under a warrant may be sustainable where without one it
would fail." See,
2 LA FAVE, SEARCH AND SEIZURE ' 4.4 at 199 (2d ed. 1987) (quoting
United States
v. Ventresca, 380
U.S.
102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). The same rule, however, does not
apply to a Franks case. To
the contrary:
[W]hen
it has been established that the earlier finding of probable cause was based
upon a broader set of "facts," some of which are now shown to be
false, there is no longer any reason to give deference to that earlier finding.
Thus, when a court reassesses a search warrant affidavit with
the false allegations excised, a "doubtful or marginal case"
should be resolved in the defendant's favor.
That is, in such circumstances the probable cause determination should be
made as it would upon a motion to suppress evidence obtained without a warrant.
Id.
The
policy underlying Franks seeks to mitigate the dangers of the ex parte
procedure used to obtain a search warrant, and to deter over-zealous officers
from supplying false information in their efforts to obtain access to the
constitutionally protected privacy of one's home or car.
See Franks, 438
U.S.
at 168-169, . . . .
We firmly adhere to these policies and believe that where the officer has
deliberately or recklessly made material misstatement and omissions in the
original affidavit, it is appropriate to resolve marginal probable cause
determinations in such a manner as will best uphold the integrity of the fourth
amendment.
810 P.2d at
186.
Two wiretap cases also support this rule, although wiretaps, unlike
search warrants, begin with the presumption that they are not constitutional.
In United States v. Carneiro,
861 F.2d 1171, 1176, 1182 (9th Cir. 1988), the court held that fruits of a
wiretap would be suppressed for material misrepresentations where, if given the
true facts, "a reasonable district court judge could [not should]
have denied the application . . . ." United
States v. Ippolito, 774 F.2d 1482, 1486-87
(9th Cir. 1985) upon which Carneiro is
based, holds the same.
The integrity of the procedures before the judge or magistrate who issues
a search warrant requires meticulous scrutiny.
Since a search warrant is issued ex parte,
"the magistrate's only check on the affiant's veracity is a search for
internal consistency . . . ." 2
LA FAVE, SEARCH & SEIZURE (2d ed. 1987) at 187.
Evidence that the affiant has misled the magistrate, and thus undermined
the usual presumption supporting the magistrate's decision, properly will
result in exclusion:
. . . The Fourth Amendment exclusionary rule by its nature
bars reliable evidence. And as the
court has repeatedly emphasized, the primary justification for the exclusion is
to serve the deterrence function. When
the cause of exclusion is the actions of the officer-affiant misleading the
magistrate, certainly that function is being served particularly well."
2 LA FAVE at
188.
e.
Future development of the rule
State v. Garrison has taken much of the punch out of Franks.
The determined practitioner should remember that the Franks
rule has been adopted by the
Washington
courts with only superficial analysis and with very little thought to its
inadequacies. Fortunately, Garrison,
a case which seizes upon shallow dictum from the most miserly
cases among Franks' progeny, did not consider any independent
State Constitutional arguments. Garrison's most offensive language
is also dictum. Whether
recklessness has some relationship to materiality, and whether the presumption
shifts when misrepresentations are shown are two issues on which Garrison
may be vulnerable.
Professor LaFave criticizes the Franks
rule lavishly. His treatise
contains many seed from which good arguments may be sprouted.
The early favorable treatment of this subject in this state, as reflected
in Jones and Goodlow,
and the relatively superficial analysis with which this excellent rules were
abandoned should be viewed as a challenge to us all -- an invitation to State
constitutional litigation.
6.
Other sub-facial challenges to search warrant
a. Information
tainted by prior unlawful police conduct
Often the unlawful
police conduct takes place before the warrant is secured, and forms a part of
the probable cause for the warrant. For
example, where the fruit of a prior unlawful trespass, unlawful search, unlawful
arrest, or a coerced (invalid) consent is included in a search warrant
affidavit, the offending information must be removed, and the remaining
information examined to determine whether it still establishes probable cause.
Wong Sun v.
United States
, 371
U.S.
471, 484-85, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co.
v.
United States
, 251
U.S.
385, 392, 64 L.Ed. 319, 40 S.Ct. 182 (1920); State
v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990).
This argument is particularly useful where evidence offered in support of
the warrant request is the result of a trespass, see State v.
Petty, 48 Wn. App. 615 (1987), or other
unlawful conduct.
b. Trespass onto private
property
You’d be amazed at how difficult it is to make private property really
private. If you live in the city, your yard may be private, but your front door
is “impliedly open to the public:” including police officers, unless you
have taken substantial steps to rebut this implication.
This is an important issue. Very
often in order to make the observation on which they base probable cause
-- such as smell -- police must trespass on private property.
This may be an interesting and fruitful area.
Federal law allows police to do whatever they want until they reach
"curtilage."
Police, without a warrant, may ignore fences and even "no
trespassing" signs which do not define the curtilage.
As a practical matter, if you live in a remote area or on large piece of
land, the feds can trespass without a warrant.
They can come to the “curtilage.”
This is where it gets fuzzy. From
a practical matter, the curtilage is the area
immediately surrounding your home where you would expect to have complete
privacy. An outbuilding 50 yards
away from the residence might not get that same protection.
It helps if it’s in the same fenced, landscaped area as the residence,
and it’s not visible from the public road.
A posted locked gate is useful too, although absent some conspicuous
excuse other than crime, most local law enforcement consider locked gates to be
probable cause.
The law here starts with Oliver v. United States, 466
U.S.
170, 80 L.Ed.2d 214, 104 S.Ct. 1735 (1984). In Oliver, officers of
the Kentucky State Police went to a farm to investigate allegations of marijuana
cultivation. The officers drove
past Oliver's house to a locked gate with a "No Trespassing" sign.
The officers walked around the locked gate and along a road and
discovered a field of marijuana over one mile from the residence.
The Court held that this field was not within the curtilage
of the house, and therefore was not entitled to Fourth Amendment protection.
In so holding, the court affirmed, and perhaps expanded, the "open
fields" exception to the Fourth Amendment that was first announced in Hester
v. United States, 265 U.S. 57, 68 L.ed. 898,
44 S.Ct. 445 (1924). Oliver
and its progeny address police searches of open fields -- areas which are not
part of the curtilage of the residence.
As the Oliver court states, citing Hester,
265
US
at 59, 68 L.Ed 898, 44 S.Ct 445:
The special protection accorded by the Fourth Amendment to
the people in their 'persons, houses, papers, and effects,' is not extended to
the open fields. The distinction
between the latter and the house is as old as common law.
Oliver,
466
US
at 176, 80 L.Ed.2d at 222. The
Court continues:
We
conclude, as did the court in deciding Hester v. U.S., that the
government's intrusion upon open fields is not one of those
"unreasonable searches" prescribed by the text of the Fourth
Amendment.
Oliver,
466
US
at 177, 80 L.Ed.2d at 223 (emphasis added).
The Oliver decision reaffirms that the curtilage
of a private residence is protected from warrantless search, and that a citizen
may still chose to "demand privacy" within that area.
This protection is both implicit and explicit in the Court's holding:
The
rule of Hester v. U.S. that we affirm today may be understood as
providing that an individual may not legitimately demand privacy
for activities conducted out of doors in fields, except in the area
immediately surrounding the home.
Oliver,
466
US
at 178, 80 L.Ed.2d at 224 (emphasis added).
In United States v. Dunn, 480
US
294, 94 L.Ed.2d 326, 107 S.Ct. 1134 (1987), the Court elaborated.
In Dunn, police officers entered the defendant's property
and peered into a barn located 60 yards from the home.
The Dunn court held:
[W]e believe that the curtilage
questions should be resolved with particular reference to four factors: the
proximity of the area claimed to be curtilage to the
home, whether the area is included within an enclosure surrounding the home, the
nature of the uses to which the area is put, and the steps taken by the resident
to protect the area from observation by people passing by.
480
US
at 301, 94 L.Ed.2d 335. The Court
in Dunn applied these four factors and concluded that the barn in
that case was not within the curtilage of the
residence, and was, therefore, not protected from trespassing police.
Oliver and Dunn leave the curtilage
of a residence protected against warrantless trespass -- at least to the extent
that the owner has taken steps "to protect the area from observation by
people passing by." Dunn, 480
US
at 300-01, 94 L.Ed.2d 334-35.
Does
this protection extend to the entry to the residence?
Professor LaFave observes that "a
portion of the curtilage, being the normal route of
access for anyone visiting the premises, is 'only a semi-private area'." United
States v. Magana, 512 F.2d 1169 (9th Cir. 1975) cited in 1 LaFave,
SEARCH AND SEIZURE, at 416. LaFave
continues:
As elaborated in State v. Corbett, 15 Or. App. 470, 516
P.2d 487 (1973):
. . . In the course of urban life, we have come to expect
various members of the public to enter [our property], e.g. brush salesmen,
newspaper boys, postmen, Girl Scout Cookie sellers, distressed motorists,
neighbors, friends. Any one of them
may be reasonably expected to report observations of criminal activity to the
police . . . . If one has a reasonable expectation that various members of
society may enter the property in their personal or business pursuits, he should
find it equally likely that the police will do so.
Thus when the police come on to private property to conduct
an investigation or for some other legitimate purpose, and restrict their
movements to places visitors could be expected to go (e.g. walkways, driveways,
porches) observations made from such vantage points are not covered by the
Fourth Amendment. But other
portions of the lands adjoining the residence are protected, and thus if the
police go upon these other portions and make observations there, this amounts to
a Fourth Amendment Search.
LaFave,
supra,
at 416 (footnotes omitted).
Other cases elaborate: In United
States v. Hatch, 931 F.2d 1478 (11th Cir. 1991), the court ruled that
"the curtilage that defines the property in
question is enclosed in the fencing around the home and taxidermist building
even if the fence may not be complete on the north and perhaps east sides of the
property."
Contrary to appellant's contention, the extent of the curtilage,
according to Dunn does not turn on whether or not the area surrounding the house
is completely fenced. The test for
determining curtilage is not a bright line
determination; nor does the boundary it defines need to be as ‘bright line’
as a fence or other obvious barrier.
931 F.2d
1481, n.2. Note here that the area
in question was actually separated from the curtilage
by a fence.
In L.A. v. Police Protective League v. Gates, 907 F.2d 879,
884, (9th Cir. 1990), the court observed
We
start with the salutary principle that the Fourth Amendment to the United States
Constitution prohibits unreasonable searches and seizures just as it prohibits
the issuance of warrants without probable cause. . . .
Nowhere is the protective force of the Fourth Amendment more powerful
than it is when the sanctity of the home is involved.
Boyd v.
United States
, 116
US
616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886); United
States v. Shaibu, 895 F.2d 1291, 1293 (9th
Cir. 1990); United States v. Winsor,
846 F.2d 1569, 1574 (9th Cir. 1988) (en banc).
The sanctity of a person's home, perhaps our last retreat in this
technological age, lies at the very core of the rights which animate the
amendment. Therefore we have been
adamant in our demand that absent exigent circumstances a warrant will be
required before a person's home is invaded by the authorities.
907 F.2d at 884. ". . .
Garages are commonly used for the storage of many household items besides
automobiles. They are not like
distant open barns or open fields to which the general public is given visual or
physical access." 907 F.2d at
885 (this particular garage was attached to the house).
In
United States
v. Boger, 755 F.Supp.
338 (E.D. Wa. 1990), the court held
For most suburban residents, the sanctity of the backyard
is as important as that of the house itself.
One of the real benefits of owning a residence such as Mr. Boger's
is the right of the owner to spend time in his backyard without interruption
from traffic or trespassers. Any
reasonable property owner in Mr. Boger's area would
not expect to find or allow strangers to invade his backyard.
In Wattenberg v. United States, 388 F.2d 853, (9th Cir.
1968), police conducted a warrantless search of a pile of trees located
approximately 35 feet from the back of the building.
The court's analysis is instructive:
[I]t
seems to us a more appropriate test in determining if a search and seizure
adjacent to a house is constitutionally forbidden is whether it constitutes an
intrusion upon what the resident seeks to preserve as private even in an area
which, although adjacent to his home, is accessible to the public. . . .
If the determination of such questions is made to turn upon the degree of
privacy a resident is seeking to preserve as shown by the facts of the
particular case, rather than upon a resort to the ancient concept of curtilage,
attention will be more effectively focused on the basic interest which the
Fourth Amendment was designed to protect.
388 F.2d at
357-58. The Wattenberg court
found that because the occupant had taken steps to protect his privacy, the
police search was unlawful. 388
F.2d at 358.
In litigating this issue, beware of United States v. Brady,
734 F.Supp. 923 (E.D. Wa.
1990), where the court held that
It is particularly true in a rural setting that society
finds it reasonable that, if no answer is received at the home, one will
approach the outbuildings to ascertain if the resident is working there.
United States v. Traynor, 990 F.2d
1153 (9th Cir. 1993), reiterates that observations made by officers
while they are not within the curtilage are
admissible, even though the entry road is posted no trespassing, and the
officers trespassed onto the curtilage while on
their way to their ultimate vantage point.
United States v. DePew, 8 F.3d
1424 (9th Cir. 1993), is a remarkable case where the court of appeals actually
excluded some evidence based upon a trespass.
The courts of the future may find that these cases have gone too far.
"The right to exclude others from private property, is 'universally'
held to be a 'fundamental element of the property right.'" Kaiser
Aetna
v.
United States
, 444
U.S.
164, 179-80, 62 L.Ed. 2d 332, 100 S.Ct. 383 (1979).
Where a citizen does not leave any access route to his home impliedly
open to the public, but instead by fences, gates, and signs clearly displays his
demand to be left alone by everyone, the police may not approach
the house -- or at least its curtilage
-- without a warrant.
This is a fruitful area for state constitutional litigation.
An
Oregon
court has required that, for land outside the curtilage,
the owner must "manifest an intention to exclude the public by erecting
barriers to entry or by posting signs."
State v.
Dixon
, 766 P.2d 1015 (Or. 1988). In
Hawaii
, courts have held that the Constitution prohibits trespass on land 400 feet
from a residence. State v.
Barnett, 703 P.2d 680 (
Hawaii
1985).
The courts in
Washington
have made clear that police have merely the same license as a citizen:
"An officer is permitted the same license to intrude as a reasonably
respectful citizen... However, a substantial and unreasonable departure from
such an area, or a particularly intrusive method of viewing will exceed the
scope of the implied invitation and intrude upon a constitutionally protected
expectation of privacy." State
v. Seagull, 632 P.2d 44 (
Wash.
1981).
Similarly, a
Texas
court eloquently observed:
This is simply not a case of open curtains inviting observations, or of
an initial aided or unaided investigatory observation...The protracted focus on
delving into the contents of the [property] belies such a claim and is easily
distinguishable from mere surveillance...Clearly, what a person knowingly
exposes to public view is not protected by the Fourth Amendment...However, the
Constitution does not require that one erect a stone bastion, or retreat to the
cellar to exhibit a reasonable expectation of privacy.
Wheeler
v. State, 659 S.W.2.d 381, 390-91 (Tex. Crim.
App. 1983).
There is, however, some very good news.
In a case for which this counsel is proud to take credit, a
Washington
appellate court ruled that nocturnal trespass, ignoring a closed gate and a no
trespassing sign, was unlawful, even though the trespass never reached the curtilage
of the residence. This is remarkable law, the first, I believe, in the country.
Your local courts should be encouraged to follow this well-reasoned
opinion. State v. Johnson,
State v. Johnson, 75 Wn. App. 692, 879 P.2d
984 (1994).
B.
WARRANTLESS SEARCHES
1. Knock and Talk and
Other Consent Searches.
“Consent” searches, in which a clearly guilty person allows
police to search a residence, vehicle, purse, suitcase, or their person without
any other lawful authority are deeply troubling.
Like talking to the police, once you have consented, you’re toast.
If they had the power or authority to search, they damn well wouldn’t
be asking for permission, would they? I
advise my clients that if a cop has been in their home they had better be able
to show me a search warrant or a broken door.
Nevertheless, consent searches abound.
One variety is particularly troublesome: the “knock and talk.”
Unless you never watch television, and haven't since before "Police
Story," you won't be surprised to learn that police have discovered a way
to search private residences without a warrant, without probable cause, and
without a show of force: the Knock and Talk.
Police simply come to your door and ask permission to search.
Remarkably, they get it. The
courts have apparently had little difficulty approving warrantless searches of
residences on later review. One
police officer who wrote a training memorandum on the subject commented:
we [the police] know that occasionally there is a
reluctance on the part of some prosecutors and judges to allow officers to enter
and search a person's home and belongings without probable cause or a search
warrant. This negative factor is
best dealt with through education. Once
the concept and success that others have achieved is properly explained, most
judges and prosecutors will accept the idea. . .
To date, over 15,000 'knock and talks' have been conducted.
Only one case that we know of has been adversely ruled against the
people.
McCabe &
Schlim, Concept and Applicability of "Knock and
Talk".
The issue here is consent. In
addressing whether the consent was coerced, the usual questions are still
relevant. Was there a show of
force? A threat to come back with a search warrant and trash the house?
A threat to arrest everyone, including visiting friends or girl/boy
friends, or take children to foster homes if consent is withheld?
A prior trespass? Was there
other conduct which implied to the citizen that the officers had the right to do
what they did, and to demand what they appeared to demand?
Whether a person voluntarily consents to a search is a question of fact
to be determined from the totality of the circumstances.
Schneckloth v. Bustamonte.
The burden of showing that a person consented to a search is upon the
state. Although this burden is
often met by showing that neither doors nor bones were broken, several factors
are relevant to determining whether consent is voluntary: 1) whether consent was
given in circumstances that are inherently coercive;
(2) whether the person who consents is aware of his right to withhold
consent; (3) whether consent is given as a result of prior illegal conduct by
the police; (4) prior refusal to cooperate by the person who consents to the
search; (5) whether consent is obtained after invocation of the Sixth Amendment
right to counsel. LaFave, SEARCH AND SEIZURE, Sec.
8.2 (a)-(k). No one factor is
determinative of the issue. State
v. Smith, 789, 801 P.2d 975 (
Wash.
1990).
Threats to Loved Ones: One
example of coercion is the threat to arrest a friend, relative or loved one.
In Ferguson v. Boyd, 566 F.2d 873 (4th Cir. 1977), the
Fourth Circuit held that if a friend or relative of the defendant was improperly
detained or threatened, the defendant's confession would be invalid.
566 F.2d at 878 n7. In
United States
v. Scarpelli, 713 F.Supp.
1144 (N.D.Ill. 1989), the United States District
Court for the Northern District of Illinois also held that if the defendant
believed his girlfriend was threatened with arrest the confession would be
invalid. 713 F.Supp
at 1156 n.8.
In United States v. Bolin, 514 F.2d 554 (7th Cir. 1975),
the police officers told the defendant that if he signed the search waiver they
would not arrest the defendant's girlfriend.
In that case, the Seventh Circuit held that even though the officer's
statement was phrased as a promise, it was really an implied threat that
the girlfriend would be arrested if the defendant did not consent to the search.
That threat rendered the defendant's consent involuntary and therefore
invalid. 514 F.2d at 559-561.
See also, United States v. Talkington,
843 F.2d 1041, 1049 (7th Cir. 1988) (remanded to district court to determine if
consent to a search was due to the threat to body search of defendant's wife):
Threatening the physical privacy of a woman to coerce her
or her spouse to acquiesce to the government's will has been a familiar tool of
totalitarian regimes. It has no
place in the
United States
.
Talkington,
843 F.2d at 1049.
In State v. Walmsley, 344
N.W.2d 450 (Neb. 1984), the Supreme Court of Nebraska held that the defendant's
consent to a search was involuntary where the sheriff told the defendant that
his wife could be arrested if Mr. Walmsley did not
cooperate. 344 N.W.2d at 452-453.
While the threat to seek a warrant, by itself may not vitiate a voluntary
consent, "it should at least be addressed as one factor under the totality
of all the circumstances test enunciated by the Supreme Court in Schneckloth."
Talkington, 843 F.2d at 1049.
Mere submission to authority is insufficient to establish consent to a
search. Bumper v. North
Carolina, supra. State
v. Browning, 67 Wn. App. 93, P.2d
(1992).
Coupled with the express threat to search in a destructive manner, the
threat to get a warrant is coercive by definition.
Where the officers begin their discussion at the door by stating that
they are investigating drug activity, State v. Soto-Garcia, 68 Wn.
App. 20 (1992), may be relevant. There
the court of appeals held that the defendant was seized at the moment the police
officer asked the defendant if he had cocaine, and if he could search the
defendant. If those events are
coercive on the street, they are even more coercive when they take place at the
front door.
The government's burden is at its heaviest when the consent that would be
inferred is a consent to enter and search a private home.
United States
v. Shaibu, 895 F.2d 1291, 1293 (9th
Cir. 1990). This is because the
protection of the privacy of the home finds it roots in clear and specific
constitutional language:
"the right of the people to be secure in their . . .
houses . . . shall not be violated." That
language unequivocally establishes the proposition that "[a]t the very core
[of the Fourth Amendment] stands the right of a [wo]man
to retreat into his own home and there be free from unreasonable governmental
intrusion." . . .
In terms that apply equally to seizures of property and to seizures of
persons the Fourth Amendment has drawn a firm line at the entrance to the house.
Judicial concern to protect the sanctity of the home is so elevated that
free and voluntary consent cannot be found by a showing of mere acquiescence to
a claim of authority.
Shaibu,
at 895 F.2d 1293.
Although courts may from time to time infer consent in various other
situations, the Ninth Circuit "has never sanctioned entry to the home based
on inferred consent." Shaibu,
at 895 F.2d 1294.
When police seek a warrant, there is clear authority for a search and a
clear record of the basis for the intrusion. Consent searches, on the other
hand, almost always involve a factual dispute between the officer's version of
the events and the defendant's. In
fact, an individual has very little recourse if a police officer claims that
consent was "freely given." For
this reason, police claims of consent must be closely scrutinized and not
automatically approved. The better
course for an investigating officer is to obtain judicial approval prior to an
entry into a private residence. Society
treads on dangerous ground if warrantless police searches are given wide
latitude under a consent theory.
Fortunately,
in the State of
Washington
, knock and talks have been spotted by the judiciary for what they are.
In State v. Ferrier, 136 Wn.2d 103 (1998), the Washington
Supreme Court ruled that “knock and talk” is such an inherently coercive
procedure that officers in Washington must first advise suspects in writing that
they may refuse to consent, limit consent, or withdraw consent at any time. This
warning must take place before any entry into the house.
2.
Privacy outside your home
Once you leave home, all privacy disappears.
There are a great number of ways for the police to “lawfully” intrude
on your privacy outside the home. Here are some examples:
a. Terry stops
Outside the home, whether you are in a vehicle or just on your feet,
your privacy is substantially lessened. What
you knowingly expose to the public is simply not private. You may be arrested
for a felony or misdemeanor committed in the officer’s presence.
You may be arrested for a felony of which the officer has knowledge,
whether or not it was committed in his presence, and whether or not a warrant
has been issued. But arrest is not
the whole picture. Under the ruling of Terry
v. Ohio, 392
U.S.
1,
88
S.
Ct.
1868,20
L. Ed. 2d 889 (1968), an officer
who has an “articulable suspicion” of criminal activity may detain you and
ask you what you are doing. If
your answers, or whatever else the officer observes get you in deeper, as
usually happens, that may give the officer probable cause to arrest you, or to
search your car. Certainly,
suspicious conduct will get their attention.
If they actually see or smell something after they stop you, they can
search your vehicle. If they have
enough to arrest you, they can search your person incident to that arrest.
If you are the subject of a valid Terry stop, police may
pat you down for weapons if they have any reason to fear.
Reasons to fear are easily generated. In the course of patting you down,
if they feel a pipe or a baggie, you can be sure they will pull it out and you
are busted.
What to do? Don’t leave
home. Failing that, be sober and
don’t arouse suspicion when you have something to hide.
If you can’t go out without getting stoned or drunk at the wheel,
you’ve got no business going out!! Don’t
carry bulky pipes or baggies in your clothing.
Use a locked briefcase for items you wish to keep private.
If you do come under scrutiny, make sure that you don’t make things
worse by giving the cops some jive story. And
don’t flunk the attitude test. But,
as with confrontations at your door, don’t be bullied.
You don’t have to give them evidence against you.
In fact, you don’t even have to talk to police under most
circumstances. Often it’s better to make them a bit angry by courteously
refusing to talk than it is to get your feet in your mouth and foreclose any
defenses your lawyer may be able to come up with.
But that means you have to be tough enough to endure their threats
without backing off of your right to remain silent.
When they threaten to arrest you, or to take other extremely unpleasant
actions, sometimes all you can do is say: “Just
do your job; and I want to talk to my lawyer.”
b. Vehicle searches
Vehicles
can be stopped for virtually any reason, including failing to signal, license
plates too dim, or touching the fog line. Once stopped, you are very vulnerable.
Warrants are generally not required to search moveable vehicles.
If probable cause exists, such as the smell of that joint you just smoked
in your car, you are going to be searched.
If you or your passenger have any outstanding warrants, you will be
arrested and the vehicle searched. Many
officers enjoy staking out parking lots where citizens may go out to enjoy a
smoke. Bad mistake.
In some states, search of a locked briefcase in a locked trunk may
require a warrant. Under federal
laws, however, it’s open season.
III.
CONSEQUENCES
1. Sentencing Generally
Each state has its own sentencing laws.
In
Washington
, a first offender marijuana grower or small distributor gets 0-90 days, usually
on work release. A fine of up
to$10,000 is also possible. If the
grow is huge, or it there is a good defense issue and the state wants to coerce
you into dropping the defense and pleading guilty, they will threaten to add a
“school zone enhancement.” In
Washington
, and in many other states, if the crime took place within 1000 feet of a school
or a school bus stop, the penalty is enhanced by 18 months.
This means prison for a first offender who refuses to take the 90 days.
The maximum penalty, reserved for repeat offenders and exceptionally
large cases, is five years.
Cultivation (manufacture) of marijuana is always a felony carrying up to
five years, with a standard sentence of 1-3 months for first offenders.
For information on penalties in other states, try www.norml.org.
In
Washington
and in other states many cops are not satisfied with the sentences handed out
under state law. They attempt to
persuade the federal government to take over their marijuana cases.
If they do, or if you are busted by the feds, the situation is much more
desperate. Under federal law the
sentences are predetermined by two different very rigid systems.
First is the mandatory minimum sentence under 21 U.S.C. § 841.
For 100 plants or 100 kilos you get five years with no parole.
For 1000 plants or 1000 kilos, you get 10.
Unless you have a prior drug felony.
Then the mandatory doubles. Other
than winning your case, there are only two ways out of this: one is to cooperate
with the government by providing “substantial assistance” in the prosecution
of another. The other is to seek a
safety valve, which is available to anyone who qualifies under §5C1.2 of the
United States Sentencing Guidelines. The
so-called “safety valve” is eligible to persons who qualify under the
following rules:
(1)
the defendant does not have more than 1 criminal history point, as determined
under
the sentencing guidelines; [note: one criminal history point is virtually any
conviction that resulted in any jail time.
3 points for sentences over 1 year; 2 points for sentences between 60
days and one year, and one point for any other conviction – js.]
(2)
the defendant did not use violence or credible threats of violence or possess a
firearm
or other dangerous weapon (or induce another participant to do so) in
connection
with the offense;
(3)
the offense did not result in death or serious bodily injury to any person;
(4)
the defendant was not an organizer, leader, manager, or supervisor of others in
the
offense,
as determined under the sentencing guidelines and was not engaged in a
continuing
criminal enterprise, as defined in 21 U.S.C. § 848; and
(5)
not later than the time of the sentencing hearing, the defendant has truthfully
provided
to the Government all information and evidence the defendant has
concerning
the offense or offenses that were part of the same course of conduct or
of
a common scheme or plan, but the fact that the defendant has no relevant or
useful
other information to provide or that the Government is already aware of the
information
shall not preclude a determination by the court that the defendant has
complied
with this requirement.
Note that
this last provision requires that you tell the government who you conspired
with, although the safety valve does not require that you actually testify
against them. (This distinction may
be meaningless, since the government can always subpoena you once they know what
you have to offer. If you refuse to
testify, you can be jailed for contempt.)
The second system is the United States Sentencing Guidelines.
Where there is no mandatory, or it is avoided by a safety valve, the
court then falls back to the guidelines to determine the sentence.
For marijuana, guideline sentences for first offenders are as follows:
(add five years if a firearm is involved in any way) (note that where growing
plants are involved, each plant counts as 100 grams, regardless of actual weight
or potential weight)
Over 30,000 kilos:
235-293 months
10,000-30,000 kg:
188-235 months
3,000-10,000 kg:
151-188 months
1,000-3,000 kg:
121-151 months
700-1000 kg:
97- 121 months
400-700 kg:
78-97 months
100-400 kg:
63-78 months
80-100 kg:
51-63 months
60-80 kg:
41-51 months
40-60 kg:
33-41 months
20-40 kg:
27-33 months
10-20 kg:
21-27 months
5-10 kg:
15-21 months
2.5-5kg
10-16 months
1- 2.5 kg
6-12 months
less than 1kg
0-6 months
Numerous
adjustments may increase or decrease the sentence.
Acceptance of responsibility, or playing a minor or minimal role may
reduce the sentence. Being a
financer, leader, or organizer may enhance the sentence.
Fines
of up to $1,000,000 are not uncommon, and the feds often make you pay for your
own incarceration.
The
federal sentencing process is about as complex as anything found in the criminal
law. You will most certainly need
an experienced lawyer to explain to you all the different possibilities.
2. Sentencing Issues:
generic marijuana presentence report
Given the enormous advantages that prosecutors now have, once you
become a customer of the criminal justice system, the odds are that you will
need to address some sentencing issues. Judges
really don’t want to hear about why marijuana shouldn’t be prohibited; that
tack often just gets you in more trouble. Just
the same, it’s not good to let the judge think that what you have done is
evil. If you are in a position to
claim that the marijuana is for personal use, or, better yet, for medical use,
you may have your sentence mitigated even if that’s not a complete defense.
These matters are usually very specific to the case, so a generic presentence
report probably doesn’t do much good. Below,
however, is just that: here is a presentence
report that collects a number of the generic issues I pull out when there’s no
choice but to confront the cruelty of the war on marijuana:
[Excerpts
from the presentence report for William Farrell.
I have deleted the referenced appendices.
The court departed downward in this case from 210 months to 144.
I guess that’s a victory?]
I.
INTRODUCTION:
“For
over fifty years the
United States
has been committed to a policy of suppressing the “abuse” of narcotic and
other “dangerous” drugs. The
primary instrument in carrying out this policy has been the criminal sanction.
The results of this reliance on the criminal sanction have included the
following:
(1) Several hundred thousand people, the overwhelming majority of whom
have been primarily users rather than traffickers, have been subjected to severe
criminal punishment.
(2) An immensely profitable illegal traffic in narcotic and other
forbidden drugs has developed.
(3) This illegal traffic has contributed significantly to the growth and
prosperity of organized criminal groups.
(4) A substantial number of all acquisitive crimes – burglary, robbery,
auto theft, other forms of larceny – have been committed by drug users in
order to get the wherewithal to pay the artificially high prices charged for
drugs on the illegal market.
(5) Billions of dollars and a significant proportion of total law
enforcement resources have been expended in all stages of the criminal process.
(6) A disturbingly large number of undesirable police practices –
unconstitutional searches and seizures, entrapment, electronic surveillance have
become habitual because of the great difficulty that attends the detection of
narcotics offenses.
(7) The burden of enforcement has fallen primarily on the urban poor,
especially Negroes and Mexican-Americans.
(8) Research on the causes, effects, and cures of drug use has been
stultified.
(9) The medical profession has been intimidated into neglecting its
accustomed role of relieving this form of human misery.
(10) A large and well-entrenched enforcement bureaucracy has developed a
vested interest in the status quo, and has effectively thwarted all but the most
marginal reforms.
(11) Legislative invocations of the criminal sanction have automatically
and unthinkingly been extended from narcotics to marijuana to the flood of new
mind-altering drugs that have appeared in recent years, thereby compounding the
preexisting problem.
A clearer case of misapplication of the criminal sanction would be
difficult to imagine.”
Herbert
Packer, The Limits of the Criminal
Sanction (1968) (emphasis supplied).
Thirty-two years later, it is still difficult to imagine.
But what Packer overlooked makes the tragic costs and failures of the war
on drugs even more troubling. The
artificially inflated price of marijuana, now selling for as much as $600.00 per
ounce, inevitably lures the foolish, the vulnerable, the desperate, and
recently, the true believers, to participate in the thriving black market.
In spite of decades during which the government has sought scientific
support for marijuana prohibition, science has shown not only that cannabis is a
relatively harmless substance, but also that it has a myriad of valuable
legitimate uses. People want it and
need it – for medicine, for recreation, for creativity, for sleep, and yes,
even for exhilaration and intoxication. Recent
news has confirmed what closet users have known for a long time:
from Sugar Ray Leonard to Carl Sagan, with Satchmo
in between, some of the great achievers and most admired people of our
generation have found a place in their lives for marijuana.
This is not because it lowers the quality of their lives, but because it
enhances it.
Most people involved in its
use or distribution know that marijuana is a substance that improves the quality
of life for most adults who use it. The
moral repugnance that might deter individuals from trading in the harder drugs.
Avoiding
& Defending Pot Busts Page 2 of 2, A large report from a lawyer,
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