Writs of Assistance: The Odor of Marijuana

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment had a specific historical context: the colonists, and later the Founders of the American Republic, were worried about General Warrants, also known as Writs of Assistance. These were all-purpose documents that permitted soldiers and law enforcement of the British Empire to search whereever and whenever they wanted for contraband, including papers, documents, and other materials that proved sedition or treason.

But, as writer Julian Sanchez notes, complaints about General Warrants also had a cultural context, as police forces, such as they were, were generally comprised of poorly trained or entirely untrained people drawn from lower social orders. So the argument that homes should not be arbitrarily invaded by the “low lif’d” was not only a principled defense of individual liberty, but also a complaint about poor, unkempt and untrained bullies rummaging through a home.

The dramatic and catastrophic erosion of Fourth Amendment protections – largely as a result of the War on Drugs – has occurred in the context of the professionalization and militarization of police forces. Today’s officer is more highly trained, particularly when it comes to the use of various types of force, and, thanks to civil asset forfeiture, better armed.

As Sanchez notes:

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.

While don’t quite have General Warrants today, we do have something very close – call it the Odor of Marijuana Warrant, which creates probable cause, according to the North Carolina Appellate Courts, to search virtually anywhere in a home or vehicle.

How will they judge us?

One hundred years from now our descendants are going to look back on this period in American history and wonder how we could allow so many people to be placed in cages for victimless drug crimes.

More than half of American citizens favor the legalization or decriminalization of marijuana, and yet most states and the federal government continue to punish people with fines, probation, and imprisonment for the possession or sale of marijuana.

Case in point: Richard Flor

Mr. Flor was prosecuted (and persecuted) by the federal government for operating a medical marijuana dispensary in Billings, Montana, even though the State of Montana legalized marijuana for medicinal purposes in 2004. Nevermind the state’s position: the federal government continues to prosecute people for possession, sale, and trafficking in marijuana.

When he was sentenced, the judge ordered the Bureau of Prisons to provide Mr. Flor, who was gravely ill, with medical services. Apparently, limited medical care was provided. Mr. Flor died, unable to see his wife who was also convicted as part of the same dispensary raid.

It’s travesty. An incredible waste of time, money, and lives.

Technology, the Fourth Amendment, and the Drug War

The United States Supreme Court’s jurisprudence on the Fourth Amendment is hopelessly naive, incoherent, and stupefying. Chalk that up to the Drug War, which for forty years has been a tool by both drug warriors and government officials to expand the government’s power to conduct searches.

Let’s take one example: Kyllo v. US, 533 US 27 (2001).

The Department of the Interior used a thermal imaging device outside Danny Lee Kyllo’s home which could not penetrate the walls or windows to reveal conversations or human movement, but could only record heat emitted from the home. The police were looking for evidence of a hydroponic marijuana grow operation, indicative of marijuana drug trafficking.

The observations of heat emanating from a part of the house formed the sole basis of the probable cause that gave police the authority to then raid the house pursuant to a search warrant.

The Court held: “Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant.”

In other words, the Court held that the thermal surveillance was itself a search that had been conducted without a warrant. The search was presumptively unreasonable given its warrantless nature, and the Court ultimately held that it was in fact illegal because the equipment used was not readily available to the general public.

In a second, related example: Florida v. Riley, 488 U.S. 445 (1989).

A Florida sheriff received a tip that a man was growing marijuana behind his mobile home. Unable to see in the greenhouse, the sheriff ordered a helicopter to fly over the property at a relatively low altitude. The sheriff could observe through his own observations – two panels were missing on the top of the greenhouse allowing him a view into the greenhouse from above – that marijuana was indeed growing inside. A warrant was obtained, and the man was charged with having a grow operation.

(Ignore, for a moment, whether the sheriff could really determine at any significant height whether in fact the plants were marijuana.)

In both cases, the Supreme Court held that the reasonableness of the search in the context of existing technologies – whether the general public would have access to thermal imaging equipment or whether the general public would expect a low-flying aircraft.

In 1990 or 2000, the idea that the general public would have access to these or similar technologies was far-fetched. Not so today.

Drone aircraft have been used increasingly in Iraq and Afghanistan to conduct assassination operations by the U.S. Government. Drone aircraft are also an increasingly common in civilian settings. Police departments – through federal grants – are getting access to the equipment. The University of North Dakota is evening offering a major in how to pilot drone aircraft.

Hobbyist groups allow regular people to acquire and fly drones.

Criminals have even gotten into the act, attempting to smuggle cell phones into a Brazilian prison through the use of an unmanned (and untraceable) vehicle.

I predict that over time, the Supreme Court will use these developments as an reason (excuse?) to grant the government even greater surveillance powers.

All in the name of keeping the country pot-free. Even though there is broad support for marijuana legalization.

And even at least 10 percent of Americans regularly smoke marijuana, and roughly 40 percent of all Americans have used marijuana in their lifetimes. And that marijuana has few addictive properties, and that marijuana is as much a gateway to harsher drugs and tobacco or alcohol are. And on and on.

Treatment Options – Avoiding Narconon

For people who have substance abuse issues or who are addicted to alcohol or narcotics, in-patient treatment programs can be effective ways of dealing with not only the addictive nature of the controlled substances, but also the underlying issues that may have given rise to the addictive behavior.

In a criminal setting, evidence that someone has taken responsibility for substance abuse issues can be used by your criminal defense lawyer to help argue to a judge that, in your case, some leniency is warranted given your acceptance of responsibility and your having taken action to confront those issues.

The default position is out-patient treatment. In Wake County, there are a number of excellent treatment providers, contact information for which is available elsewhere on my website.

Before attending any treatment option, be sure to talk to your Raleigh criminal lawyer or Raleigh DWI lawyer to find out what treatment program might be effective in a court setting.

As someone who has represented many people charged with drug crimes or DWI-related offenses and as someone who has had family members who have had substance abuse issues, I understand that sending a loved one to treatment does not necessarily resolve the matter. Addictions are almost always the result of underlying issues – feelings of inadequacy, shame, behavioral issues, and so forth. These problems are not unique to people who have substance abuse problems: We all have, to some degree, psychological and psychiatric issues that can result in unproductive behaviors. They are not easily resolved, especially not in a 30, 60, or 90 day program.

In-patient treatment programs may be appropriate for people who have more significant behavioral or substance abuse problems. Whether those are secular programs, or religious programs, my general view is that so long as these are accredited or have licensed therapists who provide treatment or follow a science-based approach that is widely accepted in the fields of therapy, psychology or psychiatry, then the program is probably fine to attend.

It may be wise for you to consult state licensing agencies, national accreditation boards, or even reviews on Google to find a program that works for you. In addition, programs that are accepted by insurance companies are probably at least minimally acceptable.

However, you should avoid Narconon. Narconon claims to be an international drug treatment service with centers in 26 countries. In fact, Narconon is closely tied to Scientology, an organization that for years has been the object of fierce criticism because many people believe it is essentially an organization that profits at the expense of its members. Visit this site for Key Facts on Narconon.

Scientology was founded by failed science fiction writer L. Ron Hubbard, whose wife was a convicted felon – convicted after an extensive investigation by the FBI that revealed that Scientology’s upper management was involved in dirty tricks attacks on critics, and government agents who were investigating whether Scientology merited non-profit religious institution status under the IRS code.

I’m loathe to say something is a cult: one person’s church is another person’s cult. But in the case of Scientology, it’s basically a scam. And Narconon is basically based on the “technology” of Scientology’s founder, L. Ron Hubbard, a huckster above all.

Heroin Punished Harshly in North Carolina

Raleigh Heroin LawyerHeroin is the most harshly punished drug in North Carolina’s sentencing scheme. Possession of 4 grams of heroin will result, upon conviction, of at least 70 months in prison, assuming no substantial assistance is provided to police to help mitigate the sentence.

Heroin was originally synthesized in 1874 by an English chemist working in London. Heroin, in fact, was the trade name that Bayer had given to diacetylmorphine, and it was originally advertised as a non-addictive morphine substitute and cough suppressant. However, it was soon discovered that Heroin metabolizes into morphine, and so was in fact a quicker acting and more addictive form of morphine.

In 1924, the United States banned the sale, importation, and manufacture of diacetylmorphine or Heroin. The following year, the League of Nations attempted to ban the drug worldwide. In 1919, Bayer lost many of its trademark rights to the name Heroin. Today, Heroin is no longer regarded as the unique trademarked name, but rather is the generic name.

Heroin can be ingested (swallowed), injected (via a needle, also known as slamming, banging, or mainlining), smoked (also known as “chasing the dragon”), insufflation (snorting), or used as a suppository (“plugging”).

In the United States, heroin is a schedule I drug according to the Controlled Substances Act and a schedule I drug according to North Carolina’s Chapter 90 schedules, meaning that heroin may not be possessed except Drug Enforcement Agency license.

Afghanistan is the largest producer of Heroin, and since 2004 has produced between 90 and 90 percent of all heroin worldwide.

Driving While Drugged… Safer than You Thought?

Driving While Drugged is taking on increasing importance, especially as the incidence of Driving While Impaired has declined dramatically over the past 30 years. Local agencies in Raleigh have been training increasing numbers of Drug Recognition Experts (DREs) whose job it is to come to a scene and use various observational skills to identify whether the suspect is, in fact, impaired as the result of a drug (as opposed to alcohol).

There is an assumption that all impairment, however, is equally dangerous. A recent study shows that marijuana use may actually improve highway safety relative to alcohol use:

According to research published in November by the Institute for the Study of Labor, a German think tank, medical marijuana laws in the United States have been associated with a 9 percent decline in traffic fatalities. That result is based on data from the Fatality Analysis Reporting System for 13 states that legalized medical use of cannabis between 1990 and 2009. The study’s authors, Montana State University economist D. Mark Anderson and University of Colorado at Denver economist Daniel Rees, argue that the most plausible explanation is the substitution of marijuana for alcohol, since laboratory research indicates that smoking pot impairs driving ability substantially less than drinking does.

Impaired driving is never a good idea. However, drivers impaired on marijuana may actually be safer than drivers impaired on alcohol, which is not a recommendation that people smoke pot before driving, but a recognition that different drugs affect the body differently.

Raleigh Possession Lawyer

Recent changes in North Carolina drug laws make hiring a Raleigh possession lawyer important when dealing with a PWISD, simple possession charge, or trafficking charge.

For first time offenders, a person charged with certain kinds of misdemeanor or felony possession charges may be eligible for drug diversion programs where, at the conclusion of the program, they are eligible for the complete dismissal of all drug crimes if they complete all the terms of the program.

It is important to hire an effective Raleigh drug lawyer as early as possible in the case, so as not to expose yourself or your child to additional charges, and to attempt to convoke a Wake County Assistant District Attorney to offer you a program that can result ultimately in a clean record.

If you or a loved one has been charged with drug trafficking, it is especially important to hire an effective Raleigh drug lawyer. Drug trafficking statutes have mandatory minimum sentences. If not handled properly, and if convicted of the offense, a defendant will be sentenced to at least 25 months (for certain drugs, such as marijuana) and at least 70 months (for opiates, including hydrocodone, oxycontin, and heroin).

If convicted of North Carolina drug trafficking crime, a defendant cannot receive any reduction in the sentence below the mandatory minimum unless the person provides “substantial assistance.”

It is important that you have an attorney who understands how to properly offer substantial assistant, and how to work with law enforcement to make your substantial assistance as effective as possible.

In addition, it is important that you have an attorney who is willing to go to trial, if that’s what you choose to do.

Dog Sniffs and Drug Detection: Probable Cause?

The Supreme Court has agreed to review a lower ruling involving whether drug detection dogs – which are notoriously poorly trained and poorly handled – can serve as a pretext for a warrantless search. As the Florida Supreme Court wrote in Harris v. State:

When will a drug-detection dog’s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures.

and concludes:

For the reasons explained below, we hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog’s reliability for purposes of determining probable cause—especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

As Jacob Sullum explains:

Although the Supreme Court has issued several decisions dealing with police dogs over the years, it has not squarely addressed the question of their reliability. Dissenting in Illinois v. Caballes, a 2005 decision that allowed warrantless sniffs of cars during routine traffic stops, Justice David Souter noted that “the infallible dog…is a creature of legal fiction.” Souter cited examples from court cases of dogs with error rates of up to 38 percent, adding that “dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time.” Souter is no longer on the Court, but evidently at least some of the current justices see a need to re-examine the assumption that a canine alert “discloses only the presence or absence of narcotics,” as the Court claimed in United States v. Place, a 1983 decision that allowed warrantless sniffs of luggage at airports on the theory that such examinations are not really searches. Maybe so, but they definitely lead to searches, and a careful consideration of whether and when they should is long overdue.

Working on a Felony Drug Contract

Someone recently asked me:

I sold marijuana to an “informant” twice. The second time I was brought in by police and offered a deal to become an confidential informant. I was told if I brought in 5 controlled drug buys. My first buy went bad, and the cops ended up revealing my cover. After that they told me I just had to do one more buy. I can’t come up with anything substantial. I’m wondering if I have any chance of still getting my charges dropped, or at least most of them. I have no clue how the law works. Should I get a lawyer?

The short answer is that you should have gotten a lawyer from the very beginning. If you are arrested on a felony drug charge and offered the opportunity to cooperate – either by providing information or by setting up potential drug buys – you should always have an attorney on your side to make sure that the deal you’re offered is a good deal. In addition, you should have an attorney who can help you work with police to get credit for everything you do.

Many contracts technically fail – meaning that the defendant has trouble providing all the assistance the defendant said he would provide at the beginning of the contract. But a good attorney is sometimes able to get the defendant credit for his good faith efforts to succeed on the contract.

Warrantless Dog Sniffs in Drug Cases

Police conducted a warrantless dog sniff test by a dog trained in drug detection at Joelis Jardines’ home five years ago. The police had received an unverified tip that Jardines’ home was being used to grow marijuana.

Under well established constitutional law, the unverified tip did not create probable cause.

In December 2006, police went to the home, and observed it for fifteen minutes. There were no cars in the driveway, the blinds were closed, and there was no observable activity.

After fifteen minutes, a dog handler arrived with a drug detection dog. The dog and the handler walked to the door. The dog alerted to the scent of contraband. Forget for a moment that dogs are notoriously unreliable when it comes to drug detection.

The dog was considered reliable enough to create probable cause. The detective also noted that the air conditioning unit was running constantly – consistent with the use of hydroponic grow lights in a marijuana grow operation.

Based on these observations, police obtained a warrant, and conducted a search, ultimately charging Jardines with drug trafficking.

While the U.S. Supreme Court has adddressed dog sniff tests in three cases – U.S. v. Place, 462 U.S. 696, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, it has not decided a dog sniff case in the context of a front door, warrantless sniff of a home.

However, in Kyllo v. U.S., the Supreme Court held that people have an expectation of privacy such that the use of thermal imaging technology, which is not typical in every day life, to detect a grow operation was clearly a violation of that privacy.

In 2011, the Florida Supreme Court ruled in State v. Jardines that the sniff test conducted at his home was in fact an intrusive procedure, and that since Jardines had an expectation of privacy, the warrantless search was unconstitutional.

The Supreme Court has granted a Writ of Certiori which means the case will be heard by the Supreme Court for an ultimate decision.

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