DEA’s massive, invasive search of phone records

While a lot of attention has been focused on the National Security Agency (NSA) and its massive wiretap operation, an equally troubling government search of phone records has recently come to light – the Drug Enforcement Agency’s collection of phone record data.

According to the ACLU, quoting the New York Times:

According to the Times, the government pays AT&T to embed its employees within anti-narcotics units, and these employees then conduct phone records searches at the government’s behest. This enables the government to obtain records from a vast AT&T database of Americans’ phone calls. The database stretches back 26 years, and 4 billion records are added every day.

These searches are used, in part, to identify burner phones. Burner phones, if you watched The Wire, are sometimes used by folks who don’t want people to listen in or track their phone calls.

The problem with burner phones, from the individual’s perspective, is that that person still needs to talk to the same set of people as part of the criminal conspiracy. That means that while the numbers may change, the pattern of the conspiracy does not.

By culling enormous databases of information, the government presumably re-identify each of the phone numbers on the new burner network, thereby reducing the effectiveness of using burners.

The catch is that we have this thing called a Constitution, with a Fourth Amendment. In the process of surveilling the network, the government is also collecting data about innocent peoples’ calling patterns.

In Dog We Trust: The Flip Side of Florida v. Jardines

Raleigh Drug LawyerIn a narrow 5-4 decision, the Supreme Court decided that when police bring a drug sniffing dog to your door, uninvited and without your consent, they are conducting a search within the meaning of the Fourth Amendment.

The case – Florida v. Jardines – reinforces the long-held principle that the home deserves the highest protections under the Fourth Amendment. The home includes the curtilage, which is that area around the home, including the immediate yard, porch, sheds, and garage. Police may not simply search the curtilage or intrude upon it to conduct a search without probable cause.

In 2006, police received an uncorroborated tip that Joelis Jardines’ home in Miami was being used as a grow house to manufacture marijuana. The DEA and Miami-Dade police organized a stake-out of the home which lasted all of about 15 minutes. Also, they were bored and lazy because why else would you conduct such a lackluster investigation. Seeing no cars in the driveway and no activity around the house, two detectives approached the home accompanied by a drug-sniffing dog.

We are told the dog was trained to alert on the scent of various drugs, including marijuana. This is nonsense, given that dogs are notoriously unreliable at alerting on such scents.

But that doesn’t stop law enforcement and prosecutors from arguing that when the Founders wrote: that no search warrant should be issued except upon probable cause, they also meant to include a bark or wag of the tail by a furry four legged friend.

The Supreme Court, full of people who have never (except for Justice Sotomayor) practiced actual criminal law, agreed with the government (as it is wont to do) and in January held in Florida v. Harris that dogs are effectively probable cause machines so long as police jump the incredibly easy hurdle of showing that police dogs have received a Drug Sniffing Dogpolice certification in a police designed and police conducted certification or training program. The defense can challenge, but, given how unsuccessful Gideon v. Wainwright has been in filling the coffers of Public Defender offices with piles of cash for expert witnesses, don’t hold your breath.

In Mr. Jardines’ case, police took their dog onto his property and up to his door, where the dog, according to police, alerted on marijuana. A search warrant was procured. The home was searched. Marijuana was found. Mr. Jardines was arrested and charged and convicted of trafficking. He appealed.

The Supreme Court was asked to decide whether the initial foray onto the curtilage with a drug-sniffing dog constituted a search. If not, then the ultimate search of the home would’ve been ruled unconstitutional.

Lo and behold, the Supreme Court came down in favor of the regular guy, writing:

…a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” … But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.”

Before you get out the balloons and don the party hats, consider for a moment that four justices, including Alito (the worst justice) and Roberts (the chief justice), dissented, meaning that they believe that it’s ok to bring a “canine forensic unit” (aka a dog) onto your property whenever they please and to sniff around to their hearts’ content.

And if the dog “alerts” or the police say the dog alerted, then the police can go get a warrant and search the home. And if they spot anything potentially illegal in plain view or say they spot anything in plain view even if not related to the drugs, they can pursue additional charges.

Since drugs can be found in any closet or container, they can search practically anything.

In that world – the world that four justices envision – what exactly is the meaning of the Fourth Amendment anymore?

How are any of us safe and secure in our homes?

Mandatory Minimums and the Drug War

Raleigh federal lawyerMike Riggs has a post over on reason.com about Rand Paul and Patrick Leahy’s efforts to create additional safety valves in federal sentencing to mitigate the effects of mandatory minimum drug laws. Riggs’ post is a good starting point.

But there’s a lot more to say.

Not All Safety Valves Are Created Equal

Right now there is only one true safety valve and a second way to break a mandatory minimum through substantial assistance.

The 3553(f) safety valve can only be used for drug offenses and specifically may not be used in cases where a weapon is used in connection with the instant offense. It requires that the individual have no more than one sentencing point and that the person gave the government all useful information prior to sentencing. This obviously does not apply in cases where the defendant goes to trial, loses, and maintains his innocence. The defendant must come clean with respect to that particular incident or set of instances.

The 3553(e) substantial assistance route allows someone to break a mandatory minimum for any crime, but only on the government’s motion. If the person did not satisfy the government’s 5K1.1 criteria, the person doesn’t get a motion and doesn’t get relief. Note that in the event of a 3553(e) a statutory mandatory minimum can be broken, but the defendant must be sentenced within the Sentencing Guidelines range. If the sentencing guidelines, based on weights of drugs or other factors, turn out to be higher than the mandatory minimum, the judge may not simultaneously go below the statutory minimum and depart from the guidelines on a government’s 3553(e).

It’s important that any safety valve, for it to have real, practical value outside of a few egregious examples, to have a few characteristics.

First, the safety valve must not be on the government’s motion, which would effectively make it worthless as a post-trial tool for judges.

Second, the safety valve must not be tied to the Sentencing Guidelines except insofar as they serve as a reference point to guide a judge’s thinking.

Third, the safety valve must not be overly restrictive in terms of prior record levels. In North Carolina, a few traffic offenses will create multiple points that can disqualify a defendant later charged in federal court from any 3553(f) safety valve consideration.

Fourth, the safety valve must not be contingent on cooperation with the government. The safety valve needs to be able to restore an defendant’s right to go to trial, and lose, and not be given a horrific punishment as in Weldon Angelos’ case.

Weldon Angelos is being punished for going to trial. Following three drug buys, he was arrested. He was offered 15 years in exchange for a guilty plea. The judge said he’d sentence him to 18 years if he could. Instead, he’s serving 55 years. In my mind, serving 15 years for selling some pot is outrageous. Angelos probably thought it was too when he rejected that plea, believing that if the truth just came out at trial, he’d win on two of the 924(c) counts and face a 5 year mandatory minimum instead of 55 years. Even though Angelos was a first time offender and not a major player in the drug operation, Angelos did not qualify for a 3553(f) because the 924(c) is a gun offense, not a drug offense.

Now he’ll get out of jail when he’s in his 70s.

Restoring Judge’s Discretion is a Good First Step

Restoring a judge’s discretion is a good first step. Mandatory minimums effectively take power from judges and give that power to prosecutors, who get to decide how to charge. A prosecutor can effectively shape the outcome by charging the defendant with a series of 924(c) or 851 enhancements so that when the defendant first gets in front of a judge for a substantive hearing, the defendant already is facing mandatory minimums measured in decades.

924(c) sentences run consecutive to each other and to all other charges. Once that decision has been made, the Defendant is stuck.

That prosecutorial hammer – the hammer that takes power from a neutral judge and gives it to a prosecutor – means that the prosecutor can extract cooperation, and very punitive pleas, as well as promises to waive certain constitutional rights, such as bail hearings and the like, in an effort to avoid being charged with crimes involving mandatory minimums.

A Better Way

We need to rethink our criminal justice system. Set aside whether you think drugs should be legal – as I do. The problem right now is that we are sending away millions of human beings and consigning them to years in prison for essentially consuming substances or selling those substances to others.

A good first step, especially in an era of austerity, is to consider whether we want to bear the economic cost of warehousing human beings.

A good next step would be to consider whether, if the government decides to warehouse people, whether those people need to be warehoused for 5 or 10 years for possessing or transporting substances. What is an adequate punishment? If you rob someone in North Carolina without a weapon, you’re looking at perhaps a year in prison as a first time offender with even the possibility of probation.

If you have a 30 pills that are classified as opiates – Oxycontin – you face, under North Carolina law, at least 6 years in prison with no way below that except by substantial assistance.

Does this make sense?

A good final step is to consider whether there aren’t better approaches – such as those in Portugal – that would emphasize treatment over incarceration.

Challenging the Underpinnings of the Drug War

Richard Branson’s son has just released a new documentary in its entirety on YouTube that looks into the policy implications of the drug war.

As a Raleigh drug lawyer, I’m often confronted by these realties as clients who either are addicted to drugs, or implicated in drug conspiracies seek my help.

One thing is clear: this country spends an enormous amount of resources punishing people for things they put in their bodies.

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.

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.

New York May Limit Marijuana Possession Arrests

The New York Times is reporting that New York Governor Andrew Cuomo has proposed to essentially decriminalize the possession of small amounts of marijuana.

The move would go a great way toward protecting people’s individual rights given that so many searches are predicated on the smell of marijuana. If small amounts of marijuana were legal to possess, it would effectively eliminate a pretext for a great many searches.

According to the New York Times:

Mr. Cuomo, a Democrat, plans to hold a news conference at the Capitol on Monday to announce his plans to seek the change in state law. Administration officials said the governor would seek to downgrade the possession of 25 grams or less of marijuana in public view from a misdemeanor to a violation, with a maximum fine of $100 for first-time offenders.

Federal Judge Calls for Sentencing Reforms

Anyone facing federal drug charges knows that the prosecutors’ power has far outstripped the judge’s power in the courtroom. That’s because the power to charge someone lies with the prosecutor, and prosecutors have enormous discretion to charge people under various laws that require the judge to impose mandatory minimum sentences even when such sentences were not originally contemplated by Congress.

The New York Times has an interesting article on Federal District Judge John Gleeson’s recent memorandum regarding sentencing.

President Obama wrote opening about his use of illegal drugs – cocaine and marijuana – in his autobiography. Yet, his Department of Justice has been as tough as any in seeking harsh mandatory minimum sentences for people accused of fairly low level drug crimes.

The article describes the fate of Jamie Dossie, a low level drug dealer who was an intermediate in hand-to-hand crack sales that netted him a grand total of about $140. But because the sales exceeded the law’s 28 gram threshold, Dossie was required to serve at least a 5 year minimum sentence upon a finding of guilt.

Now, you might ask, why didn’t Dossie go to trial? The answer is because, while I don’t know the facts of this case, after trial, the judge might have learned about other drug activity during his sentencing phase. And because the federal sentencing guidelines permit judges to sentence for all uncharged “relevant conduct,” Mr. Dossie could potentially have served a much higher sentence if he went to trial and lost.

So while the judge’s memorandum is certainly a much needed corrective, far more pressing reforms need to be imposed – including a reform of the Sentencing Guidelines themselves – to correct an over-powerful prosecution in Federal criminal cases.

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