AVOIDING AND DEFENDING POTBUSTS IN THE 2001’S 

Law Office of Jeffrey Steinborn
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Seattle, WA 98104
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http://www.potbust.com

            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,[16] 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 (9^th 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.[17]

            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 ply your trade without getting stoned or drunk at the wheel, you’ve got no business in the business!!  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 lame 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 grower 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 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.  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.  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, or robbing, stealing, or cheating, does not act as a deterrent.

            Mr. Farrell falls into this category.  He is not antisocial.  He is not dangerous.  He is prepared to serve an effective life sentence before he will harm another human being – even one who has already harmed him.  He foolishly accepted an extremely inviting economic opportunity provided by the government.  His predisposition to engage in the marijuana industry makes entrapment an unattainable defense.  But when men like Bill Farrell become customers of the criminal justice system, and face and serve sentences longer than child molesters, there is something tragically wrong.  See letters of reference attached as Appendix No. 1.

II.  DEFENSE COUNSEL’S RECOMMENDATION

            A.  GROUNDS FOR DOWNWARD DEPARTURE:  The Guidelines call for 210 to 262 months.  The 10-year mandatory minimum applies.  I respectfully recommend a sentence of 10 years prison.  This is an unusual case, demanding an unusual disposition.

            “In creating the Guidelines, the Commission did not take into account those cases that are ‘unusual’. . . .  Therefore, . . . factors that may make a case unusual allow for departure.”  United States v. Stevens, No. 98-30289 (9^th Cir. December 2, 1999).  “Simply put, the law of [the ninth] circuit clearly proscribes the categorical prohibition of grounds for departure that are not expressly excluded from consideration by the Sentencing Commission.”  United States v. Rodriguez Lopez, No. 98-50674 (9^th Cir. December 20, 1999).

            This case contains a collection of unusual mitigating factors.  We respectfully suggest that each of the following paragraphs describes factors that would – individually or in combination -- justify a downward departure in that they were not contemplated by the guidelines and place Mr. Farrell’s case far from the elusive “heartland”:

            1.  Gratuitous sentence enhancement:  While there is no question that Mr. Farrell was “predisposed” to participate in the marijuana industry, he never could have reached this extremely high level of participation without the help of the government.  He had never before participated at such a high level.  While the conduct qualifies under current law as about 25,000 pounds, and we do not dispute the figures agreed to in the plea bargain, the undisputed fact remains that there were three failed attempts to bring in one boatload of marijuana.  By the government’s own figures, even one load was worth enough to make further risk unnecessary.  At a minimum, this court should not overlook the strong possibility that Mr. Farrell would have ceased his illegal activity upon achieving a single success.

            Further, after the first shipment was scuttled, the government had more than enough evidence to successfully prosecute the defendant and his coconspirators.  Yet two more loads were “attempted.”  The defendant would be unable to prove that the motivation of the Government was simply to increase his sentence – his burden, were he to argue sentencing entrapment.  See, United States v. Rieve, 65 F.3d 727 (9^th Cir. 1999).  Many of the defendants, including Mr. Farrell, suspect that the motivation was personal to the Colflesh brothers, and that it had something to do with Asian politics.  Again, proof of this would be out of reach for the defendant.

            No doubt the Government could successfully argue that the conspiracy was allowed to proceed so that each and every participant could be identified and arrested. While this motivation may be appropriate, see, United States v. Appel, 105 F.3d 667 (9th Cir. 12/31/1996), the government’s need to ferret out each and every possible participant, while arguably laudable, is potentially without practical limits and does not justify increasing the sentence.  This case is thus not at the heartland of cases involving individuals who have successfully, and, without the help of the government, brought three successive boatloads of marijuana from Asia to the United States. 

            2.  Mr. Farrell’s medical problems:  Mr. Farrell has a bad heart, bad spine, bad shoulder bad legs, and more.  His condition is described in his letter to the court (see Appendix No. 2).  He is about as frail a 45-year-old as this counsel has ever represented.  Other than swimming and yoga, he can’t exercise.  He can barely wheel himself around with one leg.  If he leaves the wheel chair for even a moment the pain is terrible.  He is forced by the pain to follow a strict regimen of diet and exercise.  The pain in his back, however, responds to only one exercise:  swimming.  So far as this counsel knows, the last swimming pool in the federal correctional system, (Nilles Air Force Base), was filled with concrete over five years ago.  Thus whatever incarceration Mr. Farrell serves will be particularly painful.  Prison life will be significantly harder for Bill to endure than for a person without his unique combination of physical distresses.

            Life expectancy is obviously speculative.  Mr. Farrell had open-heart surgery at the Mayo Clinic in January of 1999.  One doctor, after refusing for weeks to respond to our inquiries advised this counsel’s investigator on January 20, that Mr. Farrell was “as good as new” after the heart operation he performed at the Mayo Clinic, and that he would not submit a written evaluation.  Another doctor advised Mr. Farrell that the fact that he had already suffered from one aneurysm in his heart suggests that he is susceptible to more.  Treating physicians have so far failed to provide any written evaluation of Mr. Farrell’s current health or prognosis.  On January 26, 2000, Dr. Bay, the treating physician at SeaTac Detention Center, met with this counsel but was ordered by a supervisor not to discuss the case.  What records we do have are attached as Appendix No. 3.  We doubt, however, that the Government will dispute that Mr. Farrell’s life expectancy is uncertain, and that his physical disabilities, and inability to exercise will make prison unusually “difficult” for him.

            There is precedent justifying downward departure based on these two health issues.  In United States v. Gigante, 989 F.Supp. 436, (E.D.N.Y., 1997), Vincent Gigante was convicted of five criminal counts:  racketeering, racketeering conspiracy, extortion conspiracy, labor payoff conspiracy, and conspiring to murder in aid of racketeering.  The court’s attention is respectfully invited to this fascinating case.

            In his thoughtful opinion, Judge Weinstein describes Gigante as follows:

“[He is] one of the nation’s most notorious organized crime figures.  He has long been a leader in the world of crime.  He early on demonstrated youthful arrogance and a penchant for brazen violence.

By the 1970’s, defendant was a Captain in the Genovese Crime Family.  He soon rose to Consigliere.  By the 1980’s he was the behind-the-scenes power in the Genovese Family and in the Mafia generally.

After the 1985 Commission trial and the incarceration of Anthony Salerno (who was the figurehead street boss under Mr. Gigante), defendant publicly assumed the title of official boss of the family.  He controlled a sprawling, predatory, illegal economic enterprise that siphoned millions of dollars from legitimate businesses and government through the control of corrupt unions and business leaders and the ominous, persistent threat of force and violence.  He was ruthless in discipline of those who stood in his way, while suave and charming with those he loved or needed.  He amassed great power and wealth.”

989 F. Supp at 440.

            Judge Weinstein observed “the principle of modifying a sentence to take account of a defendant’s frailty has strong and ancient roots.”  989 F. Supp. at 442.  The court continued:

“Sentencing courts are permitted to take account of age and frailty. U.S.S.G. § §  5H1.1, 5H1.4; see United States v. Rioux, 97 F.3d 648, 662-63 (2d Cir. 1996) (defendant’s medical condition resulting from a kidney transplant coupled with his prior civic good deeds permitted a ten point downward departure); United States v. Baron, 914 F. Supp. 660, 662-665 (D. Mass. 1995) (departure from level 18 to level 10 for elderly and infirm defendant); United States v. Moy, 1995 U.S. Dist. LEXIS 6732, 1995 WL 311441, at *25-29, *34 (N.D. Ill. May 18, 1995) (downward departure based upon defendant's advanced age, aggravated health condition, and emotionally depressive state); United States v. Roth, 1995 U.S. Dist. LEXIS 996, 1995 WL 35676, at *1 (S.D.N.Y. Jan. 30, 1995) (sixty-three year old defendant with neuro-muscular disease had “profound physical impairment” warranting downward departure under the Guidelines); United States v. LiButti, 1994 U.S. Dist. LEXIS 19916, 1994 WL 774647, at *10 (D. N.J. Dec. 23, 1994) (downward departure when “defendant’s combination of physical and mental conditions present an extraordinary situation in which prison life may be significantly harder to endure”); see also Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 2045, 135 L. Ed. 2d 392 (1996) (“If the special factor is a discouraged factor ... depart only if the factor is present to an exceptional degree or in some other way make the case different from the ordinary case where the factor is present.”) (citations omitted).

As in United States v. Moy, 1995 U.S. Dist. LEXIS 6732, 1995 WL 311441, at *29 (N.D. Ill. May 18, 1995), defendant’s “life would be both threatened and shortened if he was incarcerated for” the period suggested by the Guidelines; “a more limited period of incarceration would both serve all imprisonment goals and be less costly and more efficient.”  Defendant’s fragile physical state, his advanced age, and a court’s duty not to impose sentences that are excessively cruel argue strongly for a downward departure.”

989 F. Supp at 989.  Gigante was sentenced to 12 years.  Were we to use that as a benchmark, and to contrast the crimes committed by each man, Mr. Farrell would go free today.

            3.  The imposition of a coercive sentence violates due process where it is clear that the person to be coerced can or will not yield to the pressure:  The Sentence Guidelines call for sentences that even United States Attorneys refer to as “draconian.”  The purposes of these extreme sentences, according to a speech given at SeaTac, Washington, this November by veteran federal drug prosecutor Francis Diskin, are to deter criminal conduct, and to “wring cooperation out of defendants” so that the investigation may ago up the ladder.[18]  In that same speech, Mr. Diskin acknowledged that deterrence doesn’t seem to follow from the lengthy sentences in drug crimes.  Friends and relatives are standing by to take up the job abandoned by the person who is incarcerated.  But what about coercion?

            The sentencing scheme contemplates that defendants will be coerced to escape sentences that are otherwise far too harsh by assisting the government.  But Mr. Farrell cannot earn a lesser sentence by providing substantial assistance to the government.  Informants have been detested and memorialized in history from Judas to Benedict Arnold to Linda Tripp.  Dante reserved the innermost circle of hell for informants.  But that is not the reason that Mr. Farrell cannot take advantage of a 5K motion.  Mr. Farrell is forbidden by his religion from causing harm to others, be they friend or enemy.  He is a Buddhist.  The court’s attention is invited to the letter from Frederick Wehage, a friend, teacher, and author of the book Introduction to Buddhist Philosophy, Psychology, and Practice (see Appendix No. 4).

            The practical inability of the defendant to provide substantial assistance, and thus to escape a lengthy sentence by means of the option taken by roughly one fifth of all federal defendants[19] may be grounds for downward departure.  The inability – as opposed to mere reluctance – to cooperate does not appear to be a factor given any consideration by the Sentencing Commission.  (5K2.0.) 

            While certainly not dispositive, the analogy to civil contempt proceedings is compelling.  Like the system contemplated by a 5K motion, civil contempt is intended to coerce cooperation.  Where it is clear that cooperation will not be forthcoming – for any reason – due process concerns may require that further coercive incarceration be ended.  In the Ninth Circuit, Lambert v. Montana, 545 F.2d 87 (9^th Cir. 1976), states the law.  Lambert was jailed for contempt for failing to give testimony at a trial in state court.  He sought review of his custody by habeas corpus.  The Ninth Circuit remanded to the District Court, observing:

“We conclude that there may exist a substantial likelihood that petitioner’s confinement is no longer coercive, but may now be punitive.  If this is true his continued confinement denies him due process and he should be released, since to be constitutional his confinement must bear some reasonable relationship to the purpose for which he was committed.”

545 F.2d at 91. 

            Other circuits have followed this approach in the context of contempt proceedings.  For example, in Simkin v. United States, 715 F.2d 3, (2d Cir. 1983), the court observed:

“It is familiar ground that a civil contempt sanction is a coercive device, imposed to secure compliance with a court order, Shillitani v. United States, 384 U.S. 364, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966); Maggio v. Zeitz, 333 U.S. 56, 92 L. Ed. 476, 68 S. Ct. 401 (1948), and that ‘when it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment.’  Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir. 1981).”

            Another case In re Braun, 600 F.2d 420, (3^rd Cir. 1979) while denying the relief sought by the recalcitrant witness, made reference to state law in affirming the principle:

“In recent years a number of courts, when presented with situations involving indeterminate periods of confinement for civil contempt, have spoken of an additional constraint upon the civil contempt power.  Because the contemnor’s imprisonment is said to be justified as a coercive measure, these courts have declared that when the confinement has lost its coercive force it essentially becomes punitive, and the contemnor must then be released since it is well established that criminal penalties may not be imposed in civil contempt proceedings.  According to these courts, even though the government may still have an interest in obtaining the information requested from a recalcitrant witness and the witness can still purge himself of contempt by testifying, he may no longer be held once it becomes evident that the duress will not succeed in breaking his silence.  Typical is the reasoning of the New Jersey Supreme Court in Catena v. Seidl, 65 N.J. 257, 262, 321 A.2d 225, 228 (1974): 

It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the court’s order.  Most commentators agree that in civil contempt proceedings involving an adamant contemnor, continued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment.  “Contempt: Civil Contempt Order May Not Include Absolute Sentence,” 47 Minn.L.Rev. 907 (1963); “The Coercive Function of Civil Contempt,” 33 U.Chi.L.Rev. 120 (1965); see also Goldfarb, The Contempt Power (1963), Colum.Univ.Press.  The legal justification for commitment for civil contempt is to secure compliance.  Once it appears that the commitment has lost its coercive power, the legal justification for it ends and further confinement cannot be tolerated.”

600 F.2d at 424.

            Here the legitimate power of the government to compel testimony meets squarely the legitimate right of the citizen to cling to sincerely held religious beliefs – in this case innocuous inaction, rather than action.  When government powers clash with citizen rights, the history of this country shows that the appointed independent judiciary is the most dependable defender of the rights of the citizen.  Today, it may be the only one.  

            This conflict between an arguably protected right, the exercise of conscience and the power of the government to compel testimony was not contemplated by the guidelines, and would justify a downward departure.        

4.  Sentencing disparity:  Mr. Farrell’s inability to cooperate and gain the benefit of a 5K motion results in a sentencing disparity between him and the conspirators who did cooperate.  Under appropriate circumstances, this particular disparity may be grounds for downward departure.  “The goal of the Sentencing Guidelines is, of course, to reduce unjustifie