South Carolina Criminal Defense Blog

The City of Tallahassee is set to pay a $2.6 Million dollar settlement for the death of Rachel Hoffman, a Florida girl who was murdered after being forced to work as an informant for Tallahassee police following her arrests for pot.

Rachel Hoffman, 23, a recent Florida State University graduate, inhabited student drug circles, but after she was busted and agreed to become a snitch in 2008, Tallahassee police sent her out into an entirely different world. They set up a "buy-bust" sting, giving Hoffman $13,000 in marked bills to buy ecstasy, cocaine, and a gun. Instead of completing the transaction, the two men targeted shot and killed her, stole the money, her credit cards, and her car, and left her body in a ditch. The killers were later caught and are now serving life sentences.

After Rachel's death, Florida passed a law that requires police who work with informants to get special training, to allow the informant to speak with an attorney, and not to promise reduced sentences to the informant. Every state should pass a similar law - the average citizen would be shocked to learn that their children, who are not hardened criminals, are being put in harm's way by police officers to do law enforcement's job for them, often at little or no benefit to the informant.

A person who is charged with simple possession or even possession with intent to distribute marijuana, with no prior record, has a fair chance of keeping this off of their record if they do not cooperate with the police and talk to an attorney instead. If they do go to work for narcotics officers, the officer will often recommend probation as their reward - telling an arrestee that they are facing x number of years and that the officer will recommend probation to the solicitor in these cases is an outright lie. Putting this type of defendant's life in danger, and forcing them to stay in the drug world when they could otherwise be staying clean, is unacceptable.

Following Rachel Hoffman's death, the Tallahassee police chief told 20/20 that:

Rachel was suspected of selling drugs and she was rightly treated as a criminal. "That's my job as a police chief to find these criminals in our community and take them off the street, to make the proper arrests," Jones told 20/20.

A similar high-profile death is in the news in Michigan, where a 19 year old transgender woman was murdered and mutilated by a drug dealer she set up for police after being arrested herself for marijuana.

H/T Stop the Drug War.org

Thanks to some recent comments on our local listserve, I went back and read the definitions of "manufacture" and "marijuana" in the S.C. Code, and found two things - 1) the definition of "manufacture" does not include the growing of marijuana for personal use; and 2) the definition of "marijuana" excludes stems and sterile seeds.

1) "Manufacturing" of a drug is included in the same statutory sections as distribution and possession with intent to distribute - S.C. Code section 44-53-375(B) for methamphetamine and cocaine base (crack cocaine); and S.C. Code section 44-53-370(a) for everything else including marijuana:

(a) Except as authorized by this article it shall be unlawful for any person:

(1) to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue;

(2) to create, distribute, dispense, deliver, or purchase, or aid, abet, attempt, or conspire to create, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, deliver, or purchase a counterfeit substance.

When you look at the definition of "manufacture," in S.C. Code section 44-53-110, it specifically excludes the "preparation or compounding of a controlled substance by an individual for his own use . . . ":

"Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:

(1) by a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(2) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.

Which means that a person growing marijuana for his own use should not be charged with "manufacturing" marijuana - instead the person should be charged with simple possession. Simple possession of greater than 28 grams of marijuana, under 44-53-370(d)(2), is punishable by up to 6 months for a first offense, whereas manufacturing marijuana is punishable by up to 5 years for a first offense under 44-53-370(b)(2). (According to 44-53-180 and 190(d)(11) marijuana is a schedule I narcotic, because it has: (a) A high potential for abuse; (b) No accepted medical use in treatment in the United States; and (c) A lack of accepted safety for use in treatment under medical supervision. )

If the person was charged instead with possession with intent to distribute, based on the weight being greater than the inference level of 28 grams, then the potential punishment would still be the same as manufacturing. But, if it was being grown for personal use and there is no other evidence of intent to distribute, then what we are really talking about is simple possession, and not manufacturing or possession with intent. The intent of personal use that takes us outside the definition of manufacturing, also means that there was no intent to distribute.

2) The definition of "marijuana," in in S.C. Code section 44-53-110, specifically excludes stems and sterile seeds:

"Marijuana" does not mean:

(1) the mature stalks of the marijuana plant or fibers produced from these stalks;

(2) oil or cake made from the seeds of the marijuana plant;

(3) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom);

(4) the sterilized seed of the marijuana plant which is incapable of germination.

Which means, when calculating the weight of a quantity of marijuana, stems and seeds should be excluded, assuming that the seeds are sterile. I have never heard of law enforcement or chemists taking out the stems or seeds when weighing the drug, but it seems that, pursuant to the statutory definition of marijuana, a defendant should be entitled to have their own expert exclude the stems and seeds and re-weight the material. This could be critical when the weight is otherwise a close call - if the weight is close to the threshold 28 grams for an inference of intent to distribute, or the threshold 10 pounds for a trafficking marijuana charge.

In State v. Jackson, decided October 5, 2011, the S.C. Court of Appeals reversed Jackson's conviction for possession with intent to distribute marijuana and held that the trial court should have granted a directed verdict, where Jackson was a passenger in a vehicle, the officer testified that he smelled marijuana in the car and that the passenger's and driver's answers to his questions were not "real accurate," they could not give the officer a location where they were coming from or traveling to, a drug dog alerted on the vehicle, and four bags of marijuana were found hidden in the plastic housing of the gear shifter under the center console. Jackson testified that the driver and Jackson's son were friends, and that the driver was giving Jackson a ride because Jackson did not have a driver's license.

Although the State contends the center console was centrally located and thus within Jackson's dominion and control, Officer Montjoy testified the marijuana was "[u]nder the center console where the gear shifter is, the plastic housing there." Jackson did not own or rent the car; Davy provided it and was driving it. Additionally, Jackson and Davy had only met once previously, at Jackson's grandchild's birthday party. Although Officer Montjoy testified he smelled marijuana as soon as he approached the vehicle, an officer testified likewise in Brown. However, in Brown when officers found a large opaque bag containing eight pounds of marijuana on the rear floorboard, an officer's testimony he smelled marijuana and testimony the passenger was nervous were not enough evidence for the State's case to survive the passenger's directed verdict motion. Further, in Blue the officer testified the passenger made a shoulder dip and the gun was found under his seat in the car. However, this was not sufficient to sustain the passenger's conviction. Here, the evidence against Jackson is even less than in either Brown or Blue. The drugs were more out of sight, and the State presented no evidence that Jackson was nervous or made any suspicious movements. Accordingly, the State failed to present sufficient circumstantial evidence of knowledge to submit the case to the jury. Thus, the trial court erred in denying Jackson's motion for a directed verdict.

The Court is referring to United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) and State v. Brown, 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976). In Brown, the facts that Brown

was a passenger in a car on a deserted rural road about 1:00 A.M., that [the driver] had an undetermined sum of cash in a large roll, that Brown was nervous and had no identification, that there was a smell of marijuana in the car, and that there was a large opaque bag containing eight pounds of marijuana on the rear floorboard. [The driver] knew Brown's name as Chuck Brown and Brown told [the driver] to be quiet when [the driver] started to admit the crime,

In Blue , evidence was presented that

a police officer conducting nighttime surveillance of a house for possible illegal drug activity saw two men leave the house and enter a parked car on the street. The officer pulled the car over in a well-lit area to investigate a seatbelt violation. Id. While approaching the car, the officer saw the shoulder of the passenger "dip as if the passenger were reaching under the seat with his right hand." Id. After the driver and passenger exited the car, the officer searched the passenger for any weapons and "discovered a needle, a syringe, and a small amount of heroin, and therefore placed [the passenger] under arrest." Id. A consensual search of the car revealed a loaded gun under the passenger seat. Id. Both the driver and the passenger denied knowledge or ownership of the gun. Id. The car did not belong to the passenger, and no evidence was presented that the passenger had been in the carbefore.

The Fourth Circuit held in Blue that this was insufficient evidence to support the passenger's conviction for possession of the handgun.

Whether it is drugs, guns, or another type of contraband, there are two types of possession: actual possession and construction possession. Actual possession is when someone is found with the drugs on their person, in their hand, in their pocket, etc. Construction possession is when the drugs are not actually on the person, but they are found nearby - it usually arises in a house or in a car - when the drugs are not actually found on a person, the state must prove 1) dominion and control, or the right to exercise dominion and control, over the drugs (ownership, in a loose sense); and 2) knowledge that the drugs are there.

The Court of Appeals dodged the second issue raised on appeal in Jackson, which was whether the cop was full of s*** in proposing that his reasonable suspicion for the stop was that the driver was traveling 55 miles per hour, where the speed limit was 60 and the minimum was 45. The officer testified that the average speed of the other cars was 70 to 75 miles per hour, and that the other cars were lined up behind Jackson's vehicle to pass it.

The trial court found that

56-5-1560 of the South Carolina Code (2006) does not reference speed limits and states that no person should drive a vehicle at such a slow speed to impede the normal and reasonable flow of traffic. The trial court noted the testimony was that the vehicle was traveling in the center lane with a long line of traffic behind it and being passed on both sides. The trial court found the officer had probable cause to stop the car based on the statute.

So, according to the trial judge, the driver was violating the law by not speeding, and therefore causing other speeding drivers to go around him. If you don't speed, you are violating the law and the officer can pull you over. If you do speed . . .

Some time ago, during a plea hearing on trafficking cocaine charges, the prosecutor said to the judge something like, Judge, sure this defendant seems repentant, and seems like she is trying to stay clean, sure she has had a rough life, but judge all is not as it seems, and "something sinister lurks beneath." How poetic.

The defendant was a heroin addict who had stayed "clean" for some time, attending a methadone maintenance clinic and using the legal methadone instead of heroin. One day leaving the clinic an old friend approaches, asking, then begging her to hook her up with someone who can sell her heroin. She is getting sick, and in bad shape. Our defendant says no, and leaves, but the old friend then continues to call her and text her until our defendant gives in. Our defendant calls someone she knows, sets up a buy, and gets the girl what she needs. Days later, a warrant is served on our defendant for distribution of heroin.

The narcotics officers turn over incident reports, a case report, a video of the actual buy, but there are no recordings of the texts or phone calls where the informant is begging a reluctant defendant to buy drugs for her. It is a sketchy, shaky entrapment defense at best. Defendant is told by her prior attorney that she must plead guilty to a negotiated three year sentence, despite no prior record, and she calls us the day before her case is going to be called for trial.

The judge agrees to a continuance . . . of about four days and orders the case to trial. After many long hours of preparing for trial around the clock, reviewing the tapes, serving new discovery requests on the prosecutor, researching the dismal state of the law on entrapment as a defense, discovering the story, psychodrama sessions with our client, preparation for her testimony and telling her story to an ad hoc focus group made up of people from our building, defendant caves and tells us she cannot go to trial and she cannot testify. She will plead to the charge straight up, turning down the prosecutor's offer of three years.

At the plea hearing, we tell her story to the judge, she admits to the distribution, and we argue for a probationary sentence. She is sent to prison for an active two year sentence - better than what her prior attorney urged her to agree to, but still a miscarriage of justice from my point of view. She will serve not much more than a year before she is released, assuming that she gets all of the credits that she is eligible for.

We have narcotics officers who are targeting drug addicts, using them to target in some cases other drug addicts, using them in some cases to drag people back into their addiction, taking them out of treatment and sending them to prison. In this case there was not even an effort on the part of the narcotics officers to apprehend the drug dealers who sold the heroin to defendant and informant - the officers watched the dealers' car arrive, watched the transaction happen, watched the dealers pull off and leave, and then went and had a warrant signed on our girl only.

The prosecutor had the same discovery, the same video, the same information that we had. The prosecutor quite possibly had considerably more information than was provided to us. Yet, the prosecutor pushed for this girl to receive an active prison sentence, knowing how law enforcement came about this arrest, that it was "not quite entrapment," knowing that the dealers drove off with impunity. This is the justice that we seek in our courtrooms.

Something sinister lurks beneath, indeed.

In State v. Burgess, decided August 17, 2011, the S.C. Court of Appeals affirmed Burgess' convictions for trafficking in crack cocaine, possession with intent to distribute (PWID) cocaine, PWID ecstasy and possession of marijuana, affirming the trial court's determination that the officer had reasonable suspicion to stop Burgess' vehicle:

We find the evidence in the record supports the trial court's determination that Lutz had reasonable suspicion to stop Burgess. At the time Lutz activated his blue lights, Lutz was aware the Hardee's parking lot was a known meeting location for drug sales and had personal knowledge of frequent complaints of drug activity in the parking lot. Lutz observed the Jeep parked at the back of the parking lot. Its occupants were not eating and appeared to be waiting for someone. Lutz observed Burgess enter the parking lot and park haphazardly. The passenger from the Jeep entered the rear passenger seat of Burgess's car with his hand extended while Burgess looked in his direction. The events in Burgess's car lasted fifteen seconds.

The Fourth Circuit Court of Appeals pointed out in U.S. v. Foster and U.S. v. Digiovanni that they are concerned "about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Compare the facts cited in Burgess to those in Foster:

As Detective Ragland, in plain clothes, walked towards his unmarked police vehicle, he noticed a young black male sitting in the driver’s seat of an SUV with his hands on the steering wheel. Detective Ragland saw the man’s mouth move, but could not make out what he was saying. He then witnessed a second black male sit up in the passenger seat from a crouching position. The detective recognized the second individual as David Foster, Defendant-Appellant. Detective Ragland knew Foster because he had previously dated Foster’s cousin, and he had arrested Foster in the past for driving with a revoked license. He was also aware that Foster had been arrested at one point for a marijuana-related crime.

I don't see how the facts that are cited in Burgess are any more inherently suspicious than those that were cited in Foster - in both cases, it is clearly conduct that is subject to multiple interpretations and both are examples of an officer using "whatever facts are present, no matter how innocent, as indicia of suspicious activity."

Foster was decided in March of 2011, and Digiovanni was decided in July of 2011 - both Burgess and Morris were decided by the S.C. Court of Appeals in August of 2011, and were briefed and argued well before the Fourth Circuit released the Foster and Digiovanni opinions. If the S.C. Supreme Court were to grant cert on either or both of these opinions, they would be more than justified in reversing in light of Foster, Digiovanni, and other recent decisions. "Anything goes" is not and should not be the state of the law when it comes to violations of the Fourth Amendment.

The one that said, "anything goes" is no longer the state of the law when it comes to roadside Fourth Amendment violations. Particularly when the officer's testimony is clearly b.s. and flies in the face of logic. In State v. Morris, decided August 17, the S.C. Court of Appeals affirmed the trial court's decision not to suppress drugs from a roadside stop, where the stated probable cause was that the officer smelled marijuana, although his drug dog did not smell marijuana, and that there were Philly blunts inside the car. Cigars and tobacco.

What is the problem? The officers walked a K-9 around the car twice, and it did not alert. Both driver and passenger were searched and no drugs were found. They asked to leave. One of the officers then says he could have sworn he smelled marijuana, so they searched the car but did not find drugs. They then searched the trunk, and found marijuana and ecstacy in the trunk of the car.

The Court of Appeals is supposed to give deference to the findings of the trial judge - if any evidence exists to support the trial judge's findings, the Court of Appeals should affirm. But implicit in accepting the officer's testimony that he smelled marijuana is the finding that the officer's nose is more perceptive than that of a trained K-9, which simply defies logic. Apart from the officer's assertion that he smelled marijuana where the trained K-9 did not, the only fact stated that would support probable cause is the presence of Philly blunts and tobacco in the car.

There is also the distinction between the smell of burning marijuana and packaged, raw marijuana, which was ignored in this case. The officer in this case stated that he smelled burnt marijuana, and yet what was found was packaged, raw marijuana. Which has a very different odor. And which even the trained drug dog could not smell in this instance.

There seems to be a clear trend on the part of our appellate courts, 4th Circuit and the S.C. Supreme Court, reflected in the recent Foster, Digiovanni, and Tindall decisions, to no longer blindly accept any statement of probable cause that an officer manufactures after the fact, a trend to no longer allow the ends to justify the means when it comes to invasion of the Fourth Amendment on the side of the roads.

This was a terrible decision, without support in reality. I hope that the S.C. Supreme Court grants cert and takes the opportunity to affirm that "anything goes" is not the state of the law when it comes to roadside stops.

In U.S. v. Digiovanni, decided July 25, 2011, the 4th Circuit Court of Appeals affirmed a district court's suppression of drugs based on an unreasonable detention during a traffic stop, holding that the detention exceeded the scope of the traffic stop and that the consent to search was not voluntary.

1) was the traffic stop justified - in this case, the Court found that it was a valid stop for following too closely; and 2) were the officer's subsequent actions reasonably related in scope to the circumstances that justified the stop. In the context of a traffic stop, the officer can detain the driver long enough to request a driver’s license and vehicle registration, run a computer check, and issue a ticket. If the officer wants to hold the driver longer, there needs to be a reasonable suspicion of criminal activity or valid consent.

An officer can ask questions that are unrelated to the purpose of writing a ticket for a traffic violation, but not when the unrelated questioning impermissibly extends the duration of the traffic stop, or "where the police officer 'definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation' or where the unrelated questions 'constituted the bulk of the interaction' between the police officer and the defendant."

In this case, the officer launched into questions unrelated to the traffic stop that were extensive and time-consuming, concerning the defendant's travel plans and the presence of drugs, and it was clear that the officer was conducting a drug investigation and not a traffic-violation investigation. The officer did not even begin the license check until ten minutes into the encounter (the entire length of detention was 15 minutes).

There was no reasonable suspicion to justify the prolonged detention. The officer's reasonable suspicion included:

(1) the car was rented; (2) the car was coming from a known drug source state (Florida); (3) the car was traveling on I-95, a known drug corridor; (4) the car was clean; (5) two shirts were hanging in the rear passenger compartment; (6) there was a hygiene bag on the back seat; (7) Digiovanni’s hands were trembling when he handed over his driver’s license and the rental contract; (6) during the travel history questions, instead of answering the question, "[s]o you’re coming from Florida?," with a "yes," Digiovanni replied, "I have property in Florida"; (8) Digiovanni’s travel itinerary; and (9) Digiovanni’s "oh boy" comment.

The court points out that, as they expressed recently in U.S. v. Foster, they are concerned "about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity," and that the officer's stated reasons for reasonable suspicion are not inherently suspicious at all. (I would point out that the reason the Government tends to put forward whatever facts are present, no matter how innocent, as evidence of reasonable suspicion is because they are used to Courts accepting whatever explanation they give, no matter how absurd.)

The Court also holds that the government did not meet it's burden of proving by a preponderance of the evidence that the consent to search given by the defendant was voluntary. The officer's false implication that the defendant was bound by consent he had given earlier in the encounter, the officer telling the defendant to "hold on a second" after telling him he was free to go, the extensive questioning concerning drugs during an illegal seizure, the close proximity of the officer, and the officer's authoritative demeanor support the district court's finding that the consent was not voluntary.

Bloggers and commenters have been crying that the Fourth Amendment Sky is falling since Kentucky v. King was decided on May 16, 2011. A series of commenters and bloggers have wailed about how the Supreme Court ruled that the smell of pot now allows police to kick your door in, which is something that this case absolutely did not hold. For example:

- On Monday, the U.S. Supreme Court ruled that cops can sniff out marijuana just as well as trained drug dogs

- Supreme Court eviscerates Fourth Amendment over marijuana smell.

- Supreme Court carpet bombs Fourth Amendment

- Supreme Court looks at smell based home searches for pot

All of them are wrong, and I'm guessing none have actually read the opinion. The sky is not falling. Kentucky v. King simply and only held that where the police violate or threaten to violate the Fourth Amendment prior to the existence of exigent circumstances, a warrantless search violates the Fourth Amendment. Please, if you don't believe it, read to the end. Read the opinion to the end, and/ or this blog post.

The rule is that police cannot enter a home without a search warrant. One of many exceptions to the rule is that if "exigent circumstances" exist, the police may enter a home without a warrant. For example, to prevent injury to someone, to render aid to an injured person, to follow a suspect while in "hot pursuit," or to prevent the occupants from destroying evidence. But then, there is the "police-created exigent circumstances" exception to the "exigent circumstances" exception to the search warrant requirement. If police create the exigent circumstances themselves, then the exigent circumstances exception to the search warrant requirement does not apply. That's what the issue is in Kentucky v. King.

The question is whether police created the exigent circumstances themselves by knocking on the door and announcing "police!" The Kentucky Supreme Court said that they did and therefore the warrantless entry was unconstitutional, because the officers "demanded" entry - an act that at best would result in a coerced consent to enter the apartment. If there is no warrant and there are no real exigent circumstances to enter the apartment, the only thing the police can legally do is knock and "request" entry to the apartment - they have no authority to "demand' entry.

Officers watched a controlled deal/ drug buy take place in a parking lot, followed the dealer into an apartment complex, and were confronted with two doors, one to the left and one to the right. The dealer had gone into the apartment on the right, but the officers smelled pot smoke coming from the apartment on the left, so they went to that door instead. They beat on the door "as loud as [they] could," and yelled "police, police, police." After beating on the door and yelling, they heard people moving inside and so, believing that the people inside were destroying evidence, they kicked the door in. After kicking the door in, they found three people inside, one of whom was smoking marijuana.

The Kentucky Supreme Court assumed for the sake of argument that exigent circumstances existed, bypassing the question of whether the sound of someone moving inside = evidence being destroyed. The Kentucky Supreme Court held that, assuming there were exigent circumstances, the police created those circumstances themselves - it was reasonably foreseeable that if the police knocked on the door and yelled "police" that the people inside would destroy evidence. The U.S. Supreme Court disagreed.

Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.

Basically, officers have not created exigent circumstances if they acted in a lawful manner. It is an objective test, and not a subjective test - bad faith intent to get around the warrant requirement on the part of the officers is not required.

The Court rejects tests formulated by lower courts that turn on whether it was reasonably foreseeable that exigent circumstances would be created - for example, it does not matter if the police know that by knocking on a door and yelling "police," people are likely to begin destroying evidence. If the police are not acting unlawfully, and if there are exigent circumstances, they may enter the home.

The Court rejects a requirement that police stop and go get a warrant once probable cause is established - police can knock, talk to the occupants, and request consent to search instead. If exigent circumstances develop, police may enter. The Court also rejects any requirement that police conduct be in conformity with best practices or department policies.

The Court further rejects the idea that police create an exigency when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.” Police can knock and/or yell as loud as they want. Alito explains, in typical sheltered-rich-kid Alito fashion, that:

unless police officers identify themselves loudly enough, occupants may not know who is at their doorstep. Officers are permitted—indeed, encouraged—to identify themselves to citizens, and “in many circumstances this is cause for assurance, not discomfort.” United States v. Drayton, 536 U. S. 194, 204 (2002). Citizens who are startled by an unexpected knock on the door or by the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that these persons are police officers.

The Court does not decide whether the facts of this case (the sound of people moving inside) constituted exigent circumstances, and points out that the Kentucky Supreme Court did not sound convinced. The Kentucky Supreme Court is to decide this issue on remand.

The Court does not hold that police "demanding" entry to the home is not police-created exigent circumstances. In fact, it probably is. The Court ignores the finding of the trial court that police "demanded" entry, and holds only that where police knock and announce their presence, this is not a police-created exigency. The State Court is to decide the issue of whether the police "demanded" entry, on remand.

The Court does not hold in this case that police may enter a home without a warrant when they smell marijuana. The fact that officers stated they smelled marijuana is recited in the facts of the case, but it does not play into the Court's analysis anywhere. It's simply not a part of the Court's decision at all.

The Court's holding in this case is that, where an exigency exists (without finding that an exigency did or did not exist in this case), if the police did not violate or threaten to violate the Fourth Amendment prior the exigency, the exigency justifies a warrantless entry and search. A more direct way of putting this is to say, where the police violate or threaten to violate the Fourth Amendment prior to the existence of exigent circumstances, a warrantless search violates the Fourth Amendment.

Since I am late in reading this case, here's some other commentary worth reading:

Scott Greenfield also realizes that the case is not about the smell of marijuana:

The Supremes have spoken, and when the decision is penned by Justice Sam Alito, it's not a great sign. But Kentucky v. King could have been worse. It also could have been better. Some of the commentary, taken from writings about the decision rather than the decision itself, have demonstrated a rank misapprehension of what the decision says.

The issue was limited: What police conduct constitutes the unlawful creation of exigent circumstances such that the police cannot lawfully enter a residence without a warrant.

Brian Tannebaum notes the ridiculousness of the Court's distinguishing between knocking/announcing and "demanding" entry:

Respondent argues that the officers "demanded" entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion.

The only evidence being the banging on the door. Why would anyone think that people with guns banging on a door were demanding entrance?

The criminal defense bar knows where this case goes. We'll be hearing new and different things in drug cases. The "noises" of drugs being destroyed will become a staple of the direct examination in response to the 16th "what happened next."

The opinion never discussed what the "noises" of marijuana being destroyed sounds like.

I trust it will be defined by the totality of the circumstances.

Orin Kerr at Volokh Conspiracy also points out the Court's passing over of the lower court's finding that the police "demanded" entry, and points out that this case is to be decided on remand, not by the U.S. Supreme Court's opinion.

Josh Blackman has an excellent article asking why something like the potential for destruction of evidence, as opposed to an exigent circumstance where someone is actually in danger, should justify doing away with the Fourth Amendment warrant requirement:

Now, the obvious answer is that it makes it more difficult for the state to prosecute the crime, and put the bad guy behind bars. But, so what? What “right” does the government have to evidence. I suppose destruction of evidence could be a crime, but my question, more broadly, is why a constitutional right is limited in these cases.

The government has no right to prosecute someone. The state does not have rights, it has power. Only people have rights. That power is constrained by the rights guaranteed by the Constitution. Exceptions to those powers based on those rights are just that, exceptions.

§ 56-1-745, which suspends a defendant's driver's license following a conviction for any drug offense, has been repealed by H - 3668, which was signed into law on April 12, 2011. The SCDMV is still suspending licenses for arrests that occurred before April 12, even if the conviction was after, but any arrest that occurs after April 12 will no longer result in a driver's license suspension.

Suspension of driver's licenses has no rational relation to enforcement of the drug laws, and this is a positive development. We already have a law criminalizing driving under the influence, which applies equally to consumption of alcohol or drugs, and which appropriately results in a license suspension following conviction. Suspension of driver licenses for drug possession causes unnecessary hardship for countless numbers of people and it has no relation to driving offenses unless the person was also charged with DUI.

First, the Las Vegas chief deputy district attorney who prosecuted Paris Hilton for cocaine possession has been arrested and accused of buying crack.

Even better - Willie Nelson cuts a deal to plead to a fine after being charged with possession of over 6 ounces of weed, if he agrees to come to the Hudspeth County courthouse and sing the prosecutor's favorite song, “Blue Eyes Crying in the Rain." The prosecutor says, “You bet your ass I ain’t gonna be mean to Willie Nelson.”

“Willie Nelson is 77 years old, and I’m 78,” Bramblett said. “He’s been my favorite artist all my life. We all know he smokes a little pot.”

I love this story. Of course, in S.C. 6 ounces would be charged as possession with intent to distribute - barring extraordinary circumstances it will net at best a plea offer of a suspended sentence with years of probation and in some cases a plea offer of substantial prison time.

Pat Robertson is insane and has no credibility with me. So, as much as I'd like to point to this and say, "Look, even this ultra conservative religious nut mouthpiece says we need to legalize," I'm offering this more as a novelty, a fascinating wtf moment. For what it's worth. H/T Robert Guest

I had a preliminary hearing today on a possession with intent to distribute marijuana case (PWID). PWID marijuana basically means what it says - you possessed marijuana and you intended to distribute it. The threshold weight for an inference of intent to distribute is 28 grams (an ounce), but according to the officer my client only had just over 4 grams in his possession. It was packaged as basically several dime bags within a larger bag, but there was no other evidence of intent to distribute. No baggies, no scales, no ledgers of sales, no-one said they bought marijuana from the guy, nothing but a bag in a jacket pocket with just over an eighth of an ounce.

Following the officer's testimony and my argument our judge says (I paraphrase, I don't remember his exact words but this is close), "Although I agree with you that there is no evidence of intent to distribute, I think that it would send the wrong message for me to tell the police that they made a mistake."

I've been arguing with attorneys for years that preliminary hearings are not a waste of time. But, I do see their point sometimes.

December 5th is Repeal Day - on December 5th, 1933, Utah was the last of the 36 states to ratify the 21st Amendment which repealed alcohol prohibition (see NY Times article here). Alcohol prohibition was the nation's failed attempt to legislate morality by stopping the consumption of alcohol. The parallels to marijuana prohibition are undeniable - people continued to drink alcohol, but it went underground. Criminal organizations sprang up to smuggle and to sell alcohol, and violence and crime increased as a result. Once prohibition was repealed, crime dropped, government stepped in to regulate and tax the sale of alcohol, and 77 years later the world still has not ended as a result.

The Women's Christian Temperance Union, which had been promoting Prohibition for many years, believed alcohol was the cause of many, if not all, social ills. Mistruths like this were spread. Lines were drawn. Bars and taverns were vandalized. People were killed. On January 16th, 1919, Congress passed the Eighteenth Amendment, outlawing alcohol and ostensibly putting an end to drunkenness, crime, mental illness, and poverty.

Ironically, America's thirst for alcohol increased during Prohibition, and organized crime rose up to replace formerly legal methods of production and distribution. While proponents of Prohibition argued that the amendment would be more effective if enforcement were increased, respect for the law diminished and drunkenness, crime and resentment towards the federal government ran rampant.

Over the course of the next thirteen years, support for Prohibition waned as the nation awoke to the widespread problems Prohibition had caused. The number of repeal organizations — many of which were comprised of former Prohibitionists — increased, and in 1932 Franklin Delano Roosevelt ran for President on a platform that included the repeal of Prohibition.

From my post on Repeal Day 2 years ago, the following is from Law Enforcement Against Prohibition's (LEAP) message - drug prohibition does not work, the War on Drugs has failed miserably, and it is time to stop the collateral damage and try a different approach:

- In 1914, 1.3% of the people in this country were addicted to drugs when we passed the Harrison Act, creating the first illegal drug in the U.S. In 1970, the beginning of the war on drugs, 1.3% of the people in this country were addicted to drugs. Today, a trillion dollars and countless destroyed lives later, 1.3% of the population is addicted to drugs.

- Drug legalization is not an approach to the drug problem; it is about our crime and violence problem. Once drugs are legalized we still have to deal with the drug problem. We are capable of dealing with addictions - 50% of the adult smokers in our country quit in the last 10 years, giving up nicotine, the most addictive drug that we know, without criminalizing it but through aggressive education efforts.

- The first outcome of legalization is that 1.6 million less people would have to be arrested every year. And it means that 69 billion dollars every year would be freed up to put in other places, such as prevention and treatment of substance abuse, other much needed government programs, and the economy.

- In South Africa in 1993, under apartheid, they incarcerated 851 black males per 100,000. In the United States in 2004, under prohibition, we incarcerated 4919 black males per 100,000. In 2007, according to the Pew Center on the States, 1 in 15 black men aged 18 or older were incarcerated, and 1 in 9 black men aged 20 - 34 were incarcerated. How anyone could look at this and not see institutionalized racism, I don't know.

According to WMBF, a drug bust today in Myrtle Beach netted 8 kilos of black tar heroin, 1 and a half kilos of powder heroin, and a quarter of a kilo of cocaine. The DEA and Horry County narcotics officers managed to make the bust, which was the culmination of a year-long investigation, when no-one was home, and no arrests were made.

via the NORML Blog, a marijuana prohibition video worthy of virality. I agree.

Both the US Senate and the House of Representatives have passed S.1789, which reduces the 100-1 sentencing ratio for crack to powder cocaine to 18-1, and which does away with the five year mandatory minimum for simple possession of crack cocaine.

WASHINGTON, D.C. – Moments ago, the U.S. House of Representatives passed landmark legislation to dramatically reduce the sentencing disparity between federal crack and powder cocaine sentences and to repeal the five-year mandatory minimum for simple possession of crack cocaine. The bill, S. 1789, already won unanimous approval from the Senate in March and now goes to the White House for President Obama’s certain signature. Its passage marks the first time that Congress has repealed a mandatory minimum drug sentence since the Nixon administration.

That should be no-brainer. But let's stop for a minute and consider - Comrade Duch, or Kaing Khek Eav, who was a Khmer Rouge leader and in charge of a detention/torture facility in Cambodia, was sentenced to 30 years for his role in the murder of 12,380 people over a 4 year period. That's only the small part that he played personally in the devastation - close to 1.7 million people (a quarter of Cambodia's population) were executed, starved, or died from forced labor during the rule of his government. Duch will get credit for 11 years time served.

In South Carolina, drug trafficking (possession of larger quantities of drugs) is punished by mandatory minimum sentences of 25 and 30 years. In the federal courts, sentences handed down for drug conspiracy convictions range into the hundreds of years ("but I can't do that much time," protests the defendant. The judge smiles gently as he says, "just do as much as you can, son.") The sentence is determined by the sentencing guidelines and is enhanced by factors such as the defendant's criminal history, the weight of drugs that are attributed to the defendant by others in exchange for time cuts on their sentences, and "relevant conduct" - even conduct that the defendant has been acquitted of.

In South Carolina the minimum sentence for murder is 30 years, and it is common for a defendant to plead to the minimum 30, or to a lesser sentence if the state reduces the charge to manslaughter. The mandatory minimum for some levels of trafficking cocaine, crack, or heroin is also 30 years. So what is the worse crime, murder or the possession of drugs? What about the murder of over 12,000 people?

We need to keep talking about the war on drugs, the damage that it is doing, and why it has failed:

The failure of the war on drugs is a recurring topic on many criminal defense and political blogs, to the point where those of us who read blogs were probably bored with the news long ago. But the madness continues, the insane government spending, the mandatory minimum sentences that fill our prisons and destroy lives, the drug task forces who seem to become the most corrupt across the country, our nation's/ government's/ law enforcement's addiction to drugs is not slowing down one bit. Politicians are not going to change their "hard on crime" stance until the voting public is educated on the failure of the war on drugs, so we need to keep blogging and keep talking about it until change happens.

The Agitator, and The Nation, give us a transcript of President Nixon speaking with Art Linkletter, giving us a window into the origins of our nation's drug policies:

The transcripts show Linkletter telling Nixon, “There’s a great difference between alcohol and marijuana.”

Nixon replies: “What is it?” The president wants to know!

“When people smoke marijuana,” Linkletter explains, “they smoke it to get high. In every case, when most people drink, they drink to be sociable.”

“That’s right, that’s right,” Nixon says. “A person does not drink to get drunk. . . . A person drinks to have fun.”

Then Nixon turns to the global history of drinking and using drugs. “I have seen the countries of Asia and the Middle East, portions of Latin America, and I have seen what drugs have done to those countries,” he says. ”Everybody knows what it’s done to the Chinese, the Indians are hopeless anyway, the Burmese. . . . they’ve all gone down.”

Nixon continues, “Why the hell are those Communists so hard on drugs? Well why they’re so hard on drugs is because, uh, they love to booze. I mean, the Russians, they drink pretty good. . . . but they don’t allow any drugs.”

“And look at the north countries,” Nixon continued. “The Swedes drink too much, the Finns drink too much, the British have always been heavy boozers and all the rest, but uh, and the Irish of course the most, uh, but uh, on the other hand, they survive as strong races.”

Linkletter says “That’s right.”

Nixon comes to his main point about the “drug societies:” they “inevitably come apart.”

Linkletter adds, “They lose motivation. No discipline.”

Nixon gets the last word: “At least with liquor, I don’t lose motivation.”

And Popehat has the latest in the endless series of botched drug raids + target practice on the family pet - officers execute a search warrant on suspect's grandmother's house although her grandson has not lived there for 12 years, shoot her dog after promising not to harm it if she put it in the bathroom, and then claim fortune cookie wrappers are drug baggies:

The failure of the war on drugs is a recurring topic on many criminal defense and political blogs, to the point where those of us who read blogs were probably bored with the news long ago. But the madness continues, the insane government spending, the mandatory minimum sentences that fill our prisons and destroy lives, the drug task forces who seem to become the most corrupt across the country, our nation's/ government's/ law enforcement's addiction to drugs is not slowing down one bit. Politicians are not going to change their "hard on crime" stance until the voting public is educated on the failure of the war on drugs, so we need to keep blogging and keep talking about it until change happens.

In an article from the AP this week (H/T Grits for Breakfast), Martha Mendoza highlights the failure of the United States' drug policies over the past 40 years culminating in the current administration. Obama's government recognizes that it is not working, but can't help themselves - we are getting more of the same when it comes to drug policy. Despite promises of a new national policy that would treat drug use as a public health issue, focusing on prevention and treatment, spending on interdiction and law enforcement has been increased instead.

The AP has compiled the costs of the war on drugs over the past 40 years, which has not stemmed the flow of drugs one bit, finding:

_ $20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico — and the violence along with it.

_ $33 billion in marketing "Just Say No"-style messages to America's youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have "risen steadily" since the early 1970s to more than 20,000 last year.

_ $49 billion for law enforcement along America's borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.

_ $121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.

_ $450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses.

That is not a complete list of the costs of the war on drugs, and it doesn't begin to account for the human costs over the past 40 years - the families ripped apart, the people who were subjected to long prison sentences for drug offenses. I'm impressed that this story came from the AP - let's keep people talking about this country's drug policies and why they don't work.

According to SLED, cartels that had operations in Atlanta are relocating to North and South Carolina and Tennessee:

According to Reggie Lloyd, Director of South Carolina’s State Law Enforcement Division, Mexican drug cartels that used to enjoy Atlanta, Georgia are heading to rural and suburban areas of South Carolina. Lloyd says that Atlanta’s attempts to fight the cartels have been so successful that they are leaving Atlanta for quieter bases of operation, according to a Charlotte Observer report.

They need a market - I would assume that elements of drug cartels or at least those associated with them are already present in every state.

A South Carolina sheriff said Monday he was not going to charge swimmer Michael Phelps after a photo of the 14-time gold medalist showed him smoking from a marijuana pipe.

Richland County Sheriff Leon Lott said he couldn't ignore the photo but defended his investigation.

"Michael Phelps is truly an American hero ... but even with his star status, he is still obligated to obey the laws of our state," Lott said.

(H/T Windypundit and Sentencing Law and Policy)What about the other eight people that have been charged as Lott attempted to make a case against Phelps? Sheriff Lott has gotten the attention that he wanted, it does not matter if Phelps is actually charged or not. I only wonder why he isn't dragging it out more and milking it for all its worth.

For those who are interested, Brad Warthen at theState.com has this article titled "Sheriff Lott back in the day," an article published in 1996 that chronicles Lott's troubled history as a narcotics officer before being elected Sheriff in Richland County.

WIS10 reported today that Sheriff Leon Lott has arrested eight people in connection with Michael Phelp's now famous bong hit in Columbia, S.C.:

We've now learned that since investigators began trying to build a case, they've made eight arrests: seven for drug possession and one for distribution. These are arrests that resulted as the sheriff's department served search warrants.

We've also learned that the department has located and confiscated that bong.

Sources say the owner of the bong was trying to sell it on eBay for as much as $100,000.

The owner, who wasn't even at the party, is one of the eight now charged.

Apparently, everyone wants to know why is Sheriff Lott going after Phelps, why isn't he focusing on more important crime? What the hell - he loves the publicity. What could be more important than re-election? A photograph of Michael Phelps smoking weed in Columbia, S.C. was like a gift from God on Lott's doorstep. People can call him an idiot all they want, he has made national news and he is happy as he can be.

Everyone is debating whether Lott can even do anything - simple possession of marijuana and possession of paraphernalia are misdemeanors punishable by 30 days and a 500$ fine, respectively. Apparently, Lott could not force Phelps to come back and face charges if he wanted to, because a crime must carry at least one year as a potential sentence for extradition to South Carolina. If Phelps did come back, the glaring question is how will they prove possession when they don't have any marijuana in the first place? Technically, they could go forward with a prosecution without any physical evidence (although this is debatable), but for practical purposes that prosecution is dead in the water.

Norm Kent, at NORML.org, has his own analysis of Lott's legal problems in going forward with a case against Phelps, and concludes:

In essence, I suspect that very soon the Sheriff will publish a statement that after ‘due diligence,’ his ‘investigation’ revealed an insufficient basis upon which to proceed.

And maybe the next time Mr. Phelps gets caught with marijuana he will stand up and courageously say: “It’s normal to smoke pot. I am an Olympic gold medal winning athlete and it has not impaired me one bit.”

If he does, I will invite Michael to join the NORML advisory board. I will even buy him his own bong.

One thing that this fiasco has done is to once again bring the ridiculousness of marijuana prohibition to national attention. According to TheState.com:

The executive director of the National Organization for the Reform of Marijuana Laws said arresting Phelps - an unlikely scenario - would make the swimmer a symbol for the need to change laws governing the drug. "It may bring short-term pain and embarrassment, but for Michael, this will instantaneously make him a national and, because of his Olympic status, an international poster child to finally reform these laws," said Allen St. Pierre, who promised the sheriff a NORML T-shirt and lifetime membership if he arrests Phelps.

Obama's website, Change.gov, asked visitors to submit questions regarding policy matters that they feel the new administration should address, and then vote on which of the questions were most important. The voting closed today, finding the most popular question that people would like to see addressed is whether the administration will legalize marijuana:

"Will you consider legalizing marijuana so that the government can regulate it, tax it, put age limits on it, and create millions of new jobs and create a billion dollar industry right here in the U.S.?"

received 7947 votes, out of nearly 100,000 total votes on 10,303 questions. 16 of the top 50 questions submitted on the website dealt with drug law reforms. The website says,

Over the next few days, some of the most popular questions selected by the Change.gov community will be answered by the Transition team, and their responses will be posted here on the site.

I wonder if they will answer the question that received the most votes? Of course, it is not up to the President to decriminalize drug possession, but it is a strong statement of the will of the people, who are becoming more educated as to the issues involved in Prohibition and the failed war on drugs.

H/T NORML blog.

No one but Barry Cooper would pull a stunt like this one:

KopBusters rented a house in Odessa, Texas and began growing two small Christmas trees under a grow light similar to those used for growing marijuana. When faced with a suspected marijuana grow, the police usually use illegal FLIR cameras and/or lie on the search warrant affidavit claiming they have probable cause to raid the house. Instead of conducting a proper investigation which usually leads to no probable cause, the Kops lie on the affidavit claiming a confidential informant saw the plants and/or the police could smell marijuana coming from the suspected house.

The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster's attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster's secret mobile office nearby.

The attorney was handcuffed and later released when eleven KopBuster detectives arrived with the media in tow to question the illegal raid. The police refused to give KopBusters the search warrant affidavit which is suspected to contain the lies regarding the probable cause.

Barry and others are protesting the conviction of Yolanda Madden, who was charged with possession with intent to distribute marijuana, even though the Odessa narcotics unit's informant testified that they made him plant the drugs on her, the informant then passed a polygraph, Yolanda passed a polygraph, and Yolanda passed a drug test. Yolanda was convicted anyway and sentenced to 8 years in prison.

What I want to know is what kind of information the officers' search warrant affidavit contained when they raided the Kopbuster's house. I guarantee that the officers and authorities are going to attempt to charge Barry & Co. with some type of crime as a result of this embarrassment. (H/T Windypundit)

Repeal Day's 75th anniversary is December 5th. The 18th Amendment to the U.S. Constitution was ratified by Congress on January 16, 1919, making it illegal to produce, distribute, or sell alcohol. Following the growth of organized crime and a growing realization that prohibition did not work, prohibition was repealed by the 21st Amendment on December 5, 1933.

Today, there is again a growing realization that prohibition, this time of drugs, is still not working. A Los Angeles Times article published November 27th cites a report by the Brookings Institution, the latest in a series of revelations that the war on drugs has failed (H/T a public defender).

Contrary to government claims, the use of heroin and cocaine in the U.S. has not declined significantly, the report says, and the use of methamphetamine is spreading. Falling street prices suggest that the supply of narcotics has not declined noticeably, and U.S. prevention and treatment programs are woefully underfunded, the study says.

The war on drugs has resulted in ever increasing violence, at home and abroad, as drug cartels continue to profit from the vacuum created by prohibition in the United States. Former Mexican president Ernesto Zedillo, interviewed by the LA Times for the article,

cited skyrocketing violence in his own country as an example of the damage done by these policies. More than 4,000 people have been killed in Mexico this year in drug-related warfare between government troops and traffickers, and among rival drug gangs. Many of the weapons confiscated in raids and shootouts came from the U.S.

Law Enforcement Against Prohibition (LEAP), an ever-growing group of former police officers, judges, and prosecutors who support bringing an end to prohibition, will commemorate the 75th anniversary of the repeal of alcohol prohibition with an event tomorrow at the National Press Club (H/T Radley Balko), and have issued a press release:

WASHINGTON, D.C. – On Tuesday, December 2, a group of law enforcers who fought on the front lines of the “war on drugs” and witnessed its failures will commemorate the 75th anniversary of alcohol prohibition’s repeal by calling for drug legalization. The cops, judges and prosecutors will release a report detailing how many billions of dollars can be used to boost the ailing economy when drug prohibition is ended.

“America’s leaders had the good sense to realize that we couldn’t afford to keep enforcing the ineffective prohibition of alcohol during the Great Depression,” said Terry Nelson, a 30-year veteran federal agent and member of Law Enforcement Against Prohibition (LEAP). “Now, cops fighting on the front lines of today’s ‘war on drugs’ are working to make our streets safer and help solve our economic crisis by teaching lawmakers a lesson from history about the failure of prohibition. We can do it again . . ."

“We Can Do It Again: Repealing Today’s Failed Prohibition,” highlights how the “war on drugs” – just like alcohol prohibition – subsidizes violent gangsters, endangers public health and diminishes public respect for the rule of law. The report also details how the newer prohibition comes with the much graver threat of international cartels and terrorists who profit from illegal drug sales. Yet, it leaves readers on a hopeful note…

“We’re starting to see an emerging consensus that drug prohibition just doesn’t make sense,” said Seattle’s retired Police Chief Norm Stamper, a LEAP member. “Three out of four Americans now say the ‘war on drugs’ has failed, and so do the U.S. Conference of Mayors, the National Black Caucus of State Legislators and the National Hispanic Caucus of State Legislators. Now, it’s up to the new administration and Congress to follow through.”

Below is a link to a video made by LEAP, and some highlights from their message:

- In 1914, 1.3% of the people in this country were addicted to drugs when we passed the Harrison Act, creating the first illegal drug in the U.S. In 1970, the beginning of the war on drugs, 1.3% of the people in this country were addicted to drugs. Today, a trillion dollars and countless destroyed lives later, 1.3% of the population is addicted to drugs.

- Drug legalization is not an approach to the drug problem; it is about our crime and violence problem. Once drugs are legalized we still have to deal with the drug problem. We are capable of dealing with addictions - 50% of the adult smokers in our country quit in the last 10 years, giving up nicotine, the most addictive drug that we know, without criminalizing it but through aggressive education efforts.

- The first outcome of legalization is that 1.6 million less people would have to be arrested every year. And it means that 69 billion dollars every year would be freed up to put in other places, such as prevention and treatment of substance abuse, other much needed government programs, and the economy.

- In South Africa in 1993, under apartheid, they incarcerated 851 black males per 100,000. In the United States in 2004, under prohibition, we incarcerated 4919 black males per 100,000. In 2007, according to the Pew Center on the States, 1 in 15 black men aged 18 or older were incarcerated, and 1 in 9 black men aged 20 - 34 were incarcerated. How anyone could look at this and not see institutionalized racism, I don't know.

Have contests to see who can make the most forfeitures on the highways. Catawba County deputy Dennis Smith in North Carolina, for example, won the American Police Canine Association President's Award two years in a year after raking in more than $100,000.00 in drugs and cash each year for his department.

Smith got involved in the competition on invitation of the association's president, Michael Johnson.

Smith said he would send e-mails to the APCA, of which he is a member, about drug busts he and Max had been involved in. Johnson contacted Smith, asking him if he had kept track of how much drugs and cash he and Max had seized. He hadn't, but he started and sent the result to Johnson — between $120,000 and $130,000 of drugs and cash. That amount won Smith and Max the 2007 award.

They followed that accomplishment with more than $100,000 worth of drugs and cash confiscated for the 2008 award.

"This is such an honor for our department," Maj. Coy Reid of the Catawba County Sheriff's Office said. "Especially to get a national award and especially to get it two years in a row."

The seizure of money on the highways is big business for law enforcement agencies, and has become a large part of some agencies' budgets. When the goal of some officers is to see how much money they can bring in, and how much recognition they can thereby achieve, rules and the constitution's safeguards go out the window.

What some officers are doing amounts to little more than highway robbery. Officers study Fourth Amendment law, not to learn how to abide by it, but to learn how to get around it. Blacks and Hispanics are targeted on the interstates, and officers' testimony is tailored to what they believe will get by a judge in court. I have had an officer and a solicitor tell me that it does not matter how they make the stops, because they are getting drugs off the street (and money in the agency's department), and the ends justify the means.

What about the countless numbers of people who are being harassed, interrogated, and searched, who are not hauling drugs and who have done nothing wrong? The responsibility for stopping racial profiling and illegitimate forfeitures lies with prosecutors, judges, and defense attorneys. When cops cannot be honest, prosecutors have an ethical obligation to dismiss their cases or not pursue illegal forfeiture actions. When prosecutors fail then defense attorneys should take them to task, and the courts should not rubber stamp what the police are doing.

The FBI's yearly report on crime data was released this week, and shows that a record number of Americans were arrested for marijuana possession in 2007:

872,721 Americans were arrested for marijuana in 2007, and of those arrests, 89% or 775,138 were arrests for simple possession - not buying, selling, trafficking, or manufacture (growing) . . . This represents an increase in marijuana arrests of 5.2% from the previous year and the fifth straight year marijuana arrests have increased from the previous year. Now a marijuana smoker is arrested at the rate of 1 every 37 seconds and almost 100 marijuana arrests per hour.

In comparison, Grits points out that "597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses." Dallas criminal defense lawyer Robert Guest takes this a step further, finding that the clearance numbers (crimes solved) for 2007 were:

Murder 60%

Rape- 40%

Robbery- 25%

When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.

What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?

South Carolina had a total of 213,355 arrests, of which 10,681 were arrests for violent crimes, 302 were arrests for murder, and 30,679 were arrests for drug crimes

Just days before the FBI released their statistics showing that over 872,000 Americans were arrested in 2007 for marijuana, our esteemed Drug Czar stated on C-Span that "we did not arrest 800,000 marijuana users," and went on to explain that "we arrest people because they are usually involved with things like violent offenses . . ."

Right around 1:38 on the video:

I love this story from last year, where a Michigan police officer took some pot he had confiscated, baked brownies, ate them with his wife, and then called 911 to report an overdose. Please note that it is impossible to overdose on marijuana:

CNN reports on the use of Sequoia National Forest by Mexican drug cartels to grow marijuana plants, and provide an interview with our fearless drug czar on scene. Apparently the cartels are using illegal immigrants to run the growing operations, in out of the way areas of the national forest.

As Dallas Criminal Defense Lawyer Robert Guest and the NORML Blog point out, this is a disgusting example of government propaganda, hitting two panic buttons at once - 1) large quantities of that deadly marijuana being grown 2) by illegal immigrants!

If marijuana was legal, the drug cartels would not have immigrants parked in our national forests growing the stuff - as Robert Guest says, "last time I checked Mexican drug cartels were not using illegal immigrants to grow tobacco, or run moonshine stills. If you are really want to end these drug cartel pot farms in national parks, legalize pot."

The inane prohibition propaganda continues in the war on (people) drugs, with the nation's drug czar claiming that marijuana is a deadly addictive substance, and laying blame on Hollywood for glamorizing pot. The facts are there for everyone to see, but most people will continue to allow the government to feed these lies to them, without researching it themselves.

Is it possible that most people would sign up to ban anything, if it was described the way the government describes pot? Robert Guest points us to a video that illustrates how easy it is to get people to sign on when fear-based propaganda is used as a motivator:

ABC news reported tonight on Rachel Hoffman, a Florida girl who was murdered after being forced to work as an informant for Tallahassee police following her arrests for POT.

After being caught twice with a "baggie" of marijuana, 23-year old Rachel Hoffman was reportedly told by police in Tallahassee, Florida that she would go to prison for four years unless she became an undercover informant. The young woman, a recent graduate of Florida State University, was murdered during a botched sting operation two months ago.

The Tallahassee police chief said:

Rachel was suspected of selling drugs and she was rightly treated as a criminal. "That's my job as a police chief to find these criminals in our community and take them off the street, to make the proper arrests," Jones told 20/20.

This is why, 9 times out of 10, I advise my clients not to work with the Horry County DEU (drug enforcement unit) or Horry County police. Any time they make a drug bust, DEU will go to the jail and interview the person before they have a chance to speak with a lawyer. They will tell them they are going to prison if they don't cooperate, but they can help themselves by helping the cops. If they are willing, they are debriefed and tell the narcs who they know and who they can help bust, and if they know the right people the narcs get them out of jail and send them out wearing a wire to make more busts.

Sometimes this is a good deal, but more often than not your case is going to turn out the same whether you help them or not. Sometimes you come out worse, because now you are under their thumb and if you don't stop using or selling they will bust you again. And again. This is why no-one should agree to work with the narcs or even speak to them until they have consulted with an attorney about their situation.

And then, sometimes you end up dead. I once represented a person who was accused of chasing down an informant after a drug deal gone bad, and then emptying his gun into her head. When my clients ask if it is a good idea to work with the narcs, I tell them this story before they make their decision. The narcs insist that they are just down the street and will protect them, but they know that it is not possible to truly protect their informants.

I am always amazed by Horry County police officers who insist that they will not allow my 18 year old clients with no prior record, charged with simple possession of a joint, into PTI or give them a conditional discharge unless my client "gives them someone else." My answer is always no - and every one of those cases results in a dismissal, conditional discharge, or pre-trial diversion anyway, because that is the right outcome.

Besides the danger of violence, there is the danger of continued drug use period. I have clients that I watch struggle with staying clean, and I know that if they were to work for the narcs they cannot stay clean - if they are hanging around drug dealers and drug users, they will use drugs because they cannot help it. The narcs know this, but will use them up and throw them away so that they can make more busts.

Light needs to be shed on the tools that law enforcement uses in the war on (people) drugs. When they think informant, most people have a picture from the movies of a hardened drug dealer, toting a pistol and wearing the scars of his violent life, that works with law enforcement for pay or to get a deal on his charges. When they know the reality, that often it is the college student or the young person no different than their own children that is being placed in harm's way, maybe people will see this aspect of the war on drugs differently.

"How to hide your weed" was the title of an article printed in the Dallas Observer last year, reproduced here, about former East Texas cop Barry Cooper. Cooper spent eight years as a narcotics officer in Texas, and now is making his living promoting his "never get busted" dvd's that teach users tips and tricks to avoid drug arrests. Cooper's dvd's go beyond the Just Cause Law Collective's advice on handling police encounters, and delves into topics such as where to hide your stash, how to grow pot without getting caught, and how to spot undercover officers and informants.

Cooper's dvd's have been fairly controversial. As you can imagine, the law enforcement community is not pleased with him and, at the same time, he is not completely accepted by those in favor of legalization because, although he has a great message, there is not much doubt he is in it for the profit.

On his website, he answers the question, "am I teaching people how to break the law?:"

No. It is clear the law is already being broken. 18 million Americans smoke marijuana daily and 93 million Americans admit to using marijuana at least once in their life. Barry is teaching how to keep from going to jail for an unjustified law that is already being broken daily by millions of non-violent citizens.

The inevitable controversy that comes from his existence provides a platform to speak out against the failed war on drugs. Speaking out against the war on drugs, in turn, gives him more press to sell more of his dvd's, but despite this it is a powerful message that he is able to carry:

Barry now admits during his tour of duty in the war on drugs his conscience often bothered him while seeing everyday, hard working, non-violent citizens torn from their children and spouses and placed in jail during a raid or traffic stop.

Barry explains, "I knew what I was doing was wrong but my need for fame, adrenaline and peer acceptance overrode my good conscience." Barry now realizes this is a war on people not a war on drugs. He explains "This war on people is a failed policy. We have more prisoners of this war in jail then ever before yet even the DEA admits we have more potent drugs and a larger supply of drugs available than ever before."

Cooper's dvd's have received positive and negative feedback from the blawgosphere - Windypundit likes them, Jon Katz has some issues with them and instead recommends Flex Your Rights' Busted video, which is free and may be more reliable from a legal standpoint.

I went to the South Carolina Association of Criminal Defense Lawyers Blues, Bar-B-Q and Bar CLE in Greenwood, S.C. last Friday, and had a good time. One way I've found to stay excited about criminal defense and to stay current on what everyone else is doing in the field is to attend as many SCACDL and NACDL conferences as I can find time for. It is one way to re-charge and be reminded of why we do what we do.

The Greenwood CLE is always fun, coinciding with a blues and bar-b-q festival. This year I skipped the bands and the bar-b-q, but had a good time nonetheless, spent some time with old friends and learned a thing or two at the conference.

William H. Buckman traveled from New Jersey to give a presentation on methods of proving racial profiling in interstate cases, a topic that needs to be given more attention in the South where Jim Crow is alive and well on our interstates. I took a look at Mr. Buckman's website, where he has shared various materials on racial profiling challenges, and it looks like an excellent resource.

The Fourth Amendment is useless as a tool for specifically challenging racial profiling, but Buckman's suggestion is to make a threshold prima facie showing of racial disparity under the Fourteenth Amendment's Equal Protection Clause, sufficient to convince the Court to grant greater leeway in discovery. Certain documents can be obtained under the Freedom of Information Act (FOIA), which should allow for more complete discovery of agency records if a prima facie case of racial profiling/ an equal protection violation can be made.

Buckman has been successful in New Jersey in racial profiling litigation, exposing the methods used by the New Jersey State Police on the N.J. turnpike. In South Carolina, there are several "hotspots" where racial profiling occurs as well - I-85 through Spartanburg and Oconee County is one, and I-95 through Dillon County is another. It is time for more South Carolina defense lawyers to fight racial profiling on South Carolina's highways.

Attorneys don't often take drug trafficking cases to trial, usually because if the suppression hearing is lost there is no good defense at trial, and it is well known that S.C. judges are loathe to suppress any significant quantity of drugs. But if we do not challenge these cases consistently, nothing is going to change. Cops are going to continue what they are doing, and judges are going to continue slapping down the defense in the rare case that is challenged. We need to make some noise and bring more attention to what is being done to minorities on the roadside.

What's the problem, if drugs are being found and taken off the street? The problem is the thousands of innocent persons who are detained, harassed, and whose cars are tossed and sometimes dismantled, because they are Black or Hispanic. The problem is that lawyers and judges need to be enforcing the State and Federal Constitution, and not giving law enforcement license to break the law and lie in our courtrooms in order to obtain convictions or in order to fund their agencies.

For the record, I don't believe that victimless DUI will ever be decriminalized. The best that we can hope for is that future legislation and penalty schemes will at some point be the result of truthful research and not hysteria-driven politics. However, I do believe that as the public becomes aware of the facts of the failed "war on drugs," minor drug offenses will eventually be decriminalized.

Some time ago, I believed that the only people who advocated for legalization of drugs were people who used drugs. That was an easy way to write off arguments against prohibition. But, as more time goes by it has become harder and harder to justify our country's failed drug policies. And it is undeniable that the loudest voices for the end of prohibition are not drug-users, but respected researchers, attorneys, policy makers, and even law enforcement.

In an op-ed to the LA Times Saturday, attorney David Fleming and Judge James P. Gray (author of Why Our Drug Laws Have Failed and What We Can Do About It), make the observation that only cops and crooks have benefited from the $2.5 trillion spent fighting drug trafficking. They identify six groups of people that benefit from the war on drugs:

1) drug cartels who are raking in billions of tax free dollars;
2) street gangs who sell illegal drugs;
3) cops and the huge agencies that have been developed to fight (and profit from) the war on drugs;
4) politicians who get elected by talking tough about drugs and crime;
5) the prison industry; and
6) terrorist groups that are funded by drug trafficking.

Do I think we should abruptly end prohibition of drugs in all quantities? Of course not. I do think we should begin by decriminalizing simple possession of drugs, regulating their use, and funneling more funds into education, prevention, and treatment. Persons who commit real crimes while under the influence of drugs will be prosecuted and punished.

Locking up a person for using drugs in the absence of any other crime does not serve any of the traditional functions of the criminal justice system. It is not an effective deterrent to the use of drugs, and especially not for those who are addicted; there is no effective rehabilitation in most prisons; retribution is a theory of punishment that only makes sense when there is a true victim; and incapacitation is a theory that is only applicable when potential future victims need to be protected from the defendant.

Prohibition is a failed policy that has not achieved results. Although the United States has some of the most punitive drug laws in the world, and we lock up our citizens at a rate higher than any other nation, a recent study by the World Health Organization (WHO) found in a survey of 17 countries that the U.S. had the highest rates of marijuana and cocaine use.

Fleming and Judge Gray suggest that we should look to other industrialized nations to see what does work, and follow their examples. "Ending drug prohibition, taxing and regulating drugs and spending tax dollars to treat addiction and dependency are the approaches that many of the world's industrialized countries are taking. Those approaches are ones that work."

NORML reports that the U.S. Government (The United States of America, as represented by the Department of Health and Human Services) holds patents on various therapeutic cannabinoids found in pot.

And there you have it. The same federal government that steadfastly denies pot has any medicinal value also holds the medical patents on the plant’s various therapeutic cannabinoids. And they aren’t the only ones who do.

According to Wikipedia, the patent was awarded to the U.S. Government in 2003:

On October 7, 2003, a patent (#6,630,507) entitled: "Cannabinoids as Antioxidants and Neuroprotectants" was awarded to the United States Department of Health and Human Services, based on research done at the National Institute of Mental Health (NIMH), and the National Institute of Neurological Disorders and Stroke (NINDS). This patent claims that cannabinoids are "useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia."

Is this to be construed as an admission on the part of the federal government that pot does have medicinal value? A recognition of the inevitability of the legalization of medicinal marijuana? One commenter at the NORML Blog suggests that it is a new weapon in the war on drugs - if you can't prosecute them for possession or distribution, sue them for patent infringement!

Like Balko at the Agitator, I'm not sure what to make of this. It is certainly interesting, though.

Yesterday a Joint Economic Committee meeting was held by the House and Senate, called by Virginia Senator Jim Webb, to discuss the efficacy of our country's failed drug laws. There was testimony by prosecutors and legal scholars that the current emphasis on incarceration rather than treatment has proven to be costly and ineffective.

Senator Webb and the witnesses at the hearing say that despite record numbers of arrests and incarceration of drug offenders, there has been no reduction in the availability and use of drugs. "Despite the number of people we have arrested, the illegal drug industry and the flow of drugs to our citizens remain undiminished," Webb said. Also at the hearing, Rep. Robert C. "Bobby" Scott "said prevention programs such as prenatal care, early-childhood education, summer jobs and access to college would prove more cost effective than spending $65 billion a year to lock people up, as the United States does today."

According to the article, Senator Webb acknowledges that the subject matter is "politically perilous," and advocating for less prison sentences will be seen as being "soft on crime." Senator Webb said that there is no pending legislation, he just wants to get the facts out. No republicans showed up for the meeting, and there was not much media coverage of the event, as noted at Sentencing Law and Policy.

That is the main barrier to fixing the drug laws - no politician wants to be seen as "soft on crime." But it is encouraging at least to see some who are talking about it, and putting it into the public's view. The beginning of making changes in the current policy is to educate the public on the facts of the "drug war," addiction, and the ineffectiveness of current policies.

When the will of the people is to stop incarcerating America, politicians will change the laws to reflect treatment and prevention rather than incarceration for non-violent offenders. There needs to be public debate, and more people in positions of authority like Senator Webb need to speak up if there is going to be any change in our collective will as a nation.

Abuse of the forfeiture laws is rampant in South Carolina. Anytime a vehicle is stopped and any amount of drugs is found along with money, law enforcement takes the money. Sometimes they take money from passengers. Sometimes they take the vehicle. I have seen cases where a roach was found in the ashtray of a car, and the officers took all money out of the driver's pockets and informed him that it would be forfeited. Law enforcement took over $7000.00 from another client after finding a pipe in her room, and less than a quarter bag of weed in a roommates room which she was not charged with.

There are requirements that must be met under the forfeiture statute before law enforcement can take money from a person and attempt to keep it. Possession of a small amount of marijuana, proximity to a pipe or bong, or some shake on the floorboard do not qualify. If there is a valid claim for seizure of money or vehicles, law enforcement must file an action and have a judge review the case to determine whether there is probable cause for the forfeiture, and in many cases even this is not happening.

Officers will attempt to have the person consent to the forfeiture on the spot, and have the paperwork ready for them to sign. In other cases, they don't even ask for the consent and the civil suit is never filed. Law enforcement knows that these people do not know how to go about getting their money or vehicle back, and they know that if they are taking only a few thousand dollars, no attorney will take the case because the cost of the legal fees will likely exceed the amount of money that was taken.

In these situations, what is happening is armed robbery by law enforcement. Multiple officers carrying guns and displaying badges are taking what they want from people on the highway by force. The money may go to their department, although the people they are doing it to are not always sure, but that does not change the fact that it is armed robbery on the highway.

The ostensible purpose of the forfeiture laws was to use them as a weapon in the war on drugs. If you hit the drug traffickers financially then you are hurting them. This may be a valid purpose to confiscate money that is truly being used to finance drug transactions, but this is not how the forfeiture laws are being used in the situations I've described above. Law enforcement agencies depend on income from forfeitures, and there is often abuse in the way that the money is seized and the way that it is spent. Individual officers in some agencies are considered heroes by their brethren for the cash amounts that they bring in from asset seizures on the interstates.

I have told too many clients that there is nothing I can do to help them get their money back, because a few hundred or a few thousand dollars is not worth it to file suit. If I had the time I would file suit in every case where I know that law enforcement broke the law by seizing funds they were not entitled to, but I simply can't do it. What I can do is begin filing complaints in every case where this happens, no matter how small.

I believe we need greater oversight of how forfeiture laws are being implemented by various agencies. I believe the attorneys at the solicitor's offices who are handling these cases should take more initiative in ensuring that law enforcement is not breaking the law while harvesting funds from the highways. There should be a system in place to hold officers accountable for the seizures that somehow do not result in forfeiture suits being filed.

NPR has a four part story on seizure of drug money in other parts of the country that is worth reading:

Part one
Part two
Part three
Part four