Articles Tagged with “marijuana arrest”

In September of 2016 the Austin American broke a surprising story to those who aren’t in the legal field[1]. The report found that in Texas’s largest populated counties, Dallas, Harris, Travis, Bexar, and Tarrant, over 40% of minor possession of marijuana cases where bring dismissed. The report also found that prosecutors where actively discouraging police arrest through policy or practice.

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Specifically, the report found that, since 2011 there has been a large upsurge in the number of dismissals from 9% on average overall in 2011 to 41% in 2016. Prosecutors quoted about this upsurge stated simple reason for the change in policy. “Jurors would look at us like we are crazy,” Travis County prosecutor Dan Hamre told the newspaper. “‘You are spending your time, our time and the court’s time on a small amount of personal marijuana?’ “[2]. The report identified changes in policies, that had lead to the upsurge, and highlighted the irregularity in these numbers across different counties.

Policy Changes, and Legal Changes

There comes a time in everyone’s life when you must admit that you are defeated. In the context of a police encounter it is important to know when that moment comes, and what to do. In order to illustrate when, and why it becomes necessary to admit possession, a hypothetical example will be given illustrating the consequences of failing to admit defeat. It is rarely advisable to admit knowingly possessing controlled substances, alcohol, or weapons. However, there are times where it is advisable to admit such possession to a police officers.

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The Situation

Donald is driving his car down the highway, when he is pulled over by a police officer for a broken taillight. Donald is nervous as he is in possession of half an ounce of marijuana and he knows his car smells like it. Fearing the worst, Donald stuffs the marijuana in his underwear hoping to hide it if the officer searches the car. The officer approaches the window and ask Donald for his License, and proof of insurance, the officer immediately smells the marijuana and now has probable cause to search the vehicle[1] without a warrant pursuant to “The Auto Exception” doctrine set forth in Carrol[2]. The officer then asks Donald if he has anything illegal in the car. Donald says no. The officer then asks Donald for consent to search the car, Donald says no. The police officer then asks Donald to step out of the car, places him in handcuffs, pats him down. During the pat down the officer misses the marijuana Donald has stashed on his person. The officer then leads Donald to the back of the patrol car and tells him he will begin to search his car for marijuana. Donald protest, but knows in his mind the officer will not find anything as he has hidden it on his person. The officer proceeds to search Donald’s car for marijuana, and ultimately finds a bit of marijuana on the floor of the vehicle that Donald had missed. Evidence secured, the officer returns to Donald and tells him he will be arrested for possession of marijuana[3]. Donald his distraught as he believed he had gotten all of it. The officer then asks Donald if he has any marijuana on him. Donald says no, believing the charge will get worse if he turns over the rest of the marijuana.

Louisiana passed two medical marijuana laws in 2016 signed by Governor Bell Edwards (D-Louisiana). These two laws were SB 271[1] and SB 180[2] both authored by Sen. Fred Mills (R- District 22). These two bills established Louisiana as the 25th state to establish a comprehensive medical marijuana program. Louisiana’s history with medical marijuana, however, provides insights into the struggle to reform a medical program once a state has passed it.

First in the Nation

While it is mostly a footnote in history now, Louisiana was actually the first state in the nation to pass a medical marijuana program back in 1978. Passed only eight years after President Nixon signed the Controlled Substances Act, Louisiana’s original medical marijuana program, authored by Sen. Tony Guarisco (D-Morgan City) and signed by Governor Edwin Edwards (D-Louisiana) allowed patients suffering from glaucoma and cancer to use medical marijuana.

iStock_000009135835_ExtraSmallOn May 16th, 2016, the Texas GOP signaled a profound change of stance with regard to marijuana laws in Texas. Thanks to the dedicated work of many activists within the Republican Party, the State GOP adopted two resolutions with profound implications for the future of marijuana law in the Lone Star State.

Hemp

The first resolution is the most straightforward, and the least controversial step in marijuana law reform. The plank was adopted with 71% of those in favor. The resolution reads as such:

iStock_000011009457_ExtraSmall.jpgPresident Obama thinks marijuana is no more dangerous than alcohol and is less dangerous in terms of its impact on consumers. In a January 2014 interview with the New Yorker, the president compared marijuana to other vices such as alcohol and cigarettes, stating “As has been well documented, I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol.”

While the president doesn’t find the use of marijuana alarming, he is very bothered by the fact that minorities, especially minority youth, have a radically disproportionate rate of arrest and imprisonment. “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” Obama said. “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties…we should not be locking up individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.” A new study released this month supports the president’s concerns, finding that nearly half of all black males are arrested by the time they reach the age of 23.

What is even more surprising is that notoriously conservative Texas governor Rick Perry has also shown a recent liberalized attitude towards marijuana. Perry, speaking to the World Economic Forum in Switzerland, defended Colorado and Washington state’s vote to legalize the drug, saying it is a matter of states’ rights. Although Perry sidestepped questions of whether he supported the decriminalization of marijuana, he promoted Texas’ drug courts, which offer treatment instead of incarceration for non-violent offenders, as an example to other states and nations.

iStock_000001725183XSmall.jpgA recent report by the Partnership at Drug Free, formerly known as the Partnership for a Drug Free America, found a solid majority of those polled by the organization itself, 52 percent, favor marijuana decriminalization and a vast majority, 70 percent, favor medical marijuana. The Partnership interviewed 1,603 adults. The majority of these adults (1,200) are parents of children who are between 10 and 19 years old. The report found 72 percent of mothers and 67 percent of fathers support medical marijuana.

One may be surprised that an organization focused on combating teenage drug use is publicizing report results showing favorable parental views on marijuana law reform. A deeper look into the results of marijuana law reform reveals that marijuana reform could help combat teenage marijuana use and thus align with the goals of the Partnership. For example, since Colorado passed marijuana laws, marijuana usage among Colorado teenagers has gone down. Colorado, probably the most marijuana friendly state in the nation, has a teenage marijuana use rate that is below the national average. Despite the beliefs of marijuana reform opponents that claim pro-marijuana laws will increase adolescent marijuana use, a recent report revealed there is no visible link between states legalizing medical marijuana and children increasing marijuana consumption.

The Partnership has had a noticeable history of focusing especially on the dangers of marijuana, even though the harms caused by alcohol, tobacco, and pharmaceuticals far outweigh the harms of marijuana use. Past funding sources of the Partnership may explain the lack of particular focus on drugs more destructive than marijuana. According to Fairness and Accuracy in Reporting (FAIR), the Partnership has accepted funding from numerous tobacco, alcohol, and pharmaceutical companies. These companies include the Budweiser, Michelob, Busch Beer Company: Anheuser Busch, the Marlboro and Virginia Slims company: Philip Morris, the Camel, Salem, Winston cigarettes company: R.J. Reynolds, as well as firms associated with pharmaceuticals like Bristol Meyers-Squibb, Merck & Company, and Proctor & Gamble. The Partnership reportedly ceased accepting alcohol and tobacco funding, but continues to receive support from major pharmaceutical firms, despite the fact that pharmaceutical drugs cause the most overdose deaths compared to all other drugs.

CYMERA_20130829_142314.jpgAn investigation by Reuters revealed that a secretive unit of the Drug Enforcement Administration (DEA) is using information gathered by Intelligence Agencies to facilitate criminal investigations of US residents. The information gathered by intelligence agencies, including the NSA, CIA, and Department of Homeland Security, are supposed to be used for national security and counter-terrorism purposes. Instead, the DEA unit is using intelligence information to go after individuals who are not connected to terrorism. This DEA unit, named the Special Operations Division (SOD) was created in 1994 to target Latin American drug cartels, but since then has warped into a domestic spying operation utilizing unconstitutional powers and procedures.

Examples of the unconstitutional procedures used by SOD include “parallel construction.” The practice of “parallel construction” was exposed by documents reviewed by Reuters. “Parallel construction” is where law enforcement officers, once they begin an investigation based on information from SOD, reconstruct the investigative trail to cover up the information’s origins, and thus deceive the defendant or the defendant’s defense attorney, along with prosecutors and judges involved in the criminal case. The documents also reveal that federal agents and local police are specifically instructed to “omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Experts, including Harvard law professor and former federal judge Nancy Gertner, believe that this practice violates a defendant’s constitutional right to a fair trial. If the defendant or the defendant’s defense attorney are not aware of how the investigation began, they cannot know how best to explore potential sources of exculpatory evidence – information that may reveal entrapment, mistakes or biased witnesses. Speaking to Reuters, former federal prosecutor Henry E. Hockeimer Jr. criticized SOD’s powers, saying “you can’t game the system, you can’t create this subterfuge. These are drug crimes, not national security cases.”

US law enforcement has imprisoned millions of people on drug-war convictions over the last 20 years. Due to their authorized yet unconstitutional deception caused by “parallel construction,” the number of those drug cases which resulted from evidence collected by spy agencies will never be known. The Reuters article, which broke this story, quotes DEA officials as saying that the DEA has utilized the “parallel construction” procedure “virtually every day since the 1990s.” The amount of phone data the DEA has collected now surpasses the amount of data collected by the National Security Agency (NSA).

iStock_000009135835_ExtraSmall.jpgIn Texas, Marijuana is an illegal substance that is subject to forfeiture by the state. While this may be of no surprise, you may not be familiar with the forfeiture process and how it works. The government has different modes and methods of dealing with controlled substances. Some of these processes do not even require a court order, they occur automatically due to statutory regulation. This article discusses and describes the process the government implements after it seizes controlled substances, such as marijuana.

Let’s look at a hypothetical traffic stop situation. A driver gets pulled over and the officer looks in his back seat and sees a sizable amount of marijuana. After the driver gets arrested, the officer seizes the marijuana and seals it in an evidence bag. It is at this point that the seized marijuana is put into the custody of the police. This entire process, from seizure, to storage, record keeping, court, and then finally destruction is called the “Chain of Custody” (COC). There are very detailed and strict rules regulating how the police can handle evidence while it is in their custody. If they break one of these rules, the “chain” of custody is broken and the compromised evidence becomes subject to objection and scrutiny.

Assuming the COC is maintained, the case will end with a verdict. The seized marijuana is then subject to “summary destruction”. Tex. Health & Safety Code Ann. § 481.154 . Summary destruction is a process that differs among departments, but there are three certain rules that process must follow: “(1) more than one person to witness the destruction of the property or plants; (2) the preparation of an inventory of the property or plants destroyed; and (3) the preparation of a statement that contains the names of the persons who witness the destruction and the details of the destruction.” Id. After the seized marijuana is destroyed, “a document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.” Id. With this document, the seized marijuana is recorded and properly disposed of per statute.

2014-01-12 15.06.54.jpgThere is no question that the major tobacco industries for a time were grossly irresponsible in their promotions and commercial sales of tobacco products. Tobacco industries misled the public on the harmful effects of tobacco use, marketed the product to adolescents, and even persuaded physicians into endorsing cigarettes as medicine. A concern of many individuals regarding the legalization of marijuana is that the marijuana industry will become another incarnation of the tobacco industry, bringing with it more corporate greed rather than public good. As major investors, such as a former Microsoft manager, plan to pour millions of dollars into the legal marijuana market, and as investor groups predict marijuana to become America’s next great industry, the concern of the possible emergence of “Big Marijuana” akin to “Big Tobacco” seems well warranted. “Big Marijuana” already exists in the form of drug cartels. Well-drafted regulations could prevent gross irresponsibility in the legal marijuana industry.

Mexico’s biggest agricultural import is marijuana, annually creating billions of dollars of revenue for drug cartels. Estimates from Mexico’s Attorney General’s office reveals that the profits from the marijuana exported in the US make up about half of drug cartels’ overall revenues. Not only are drug cartels producing illicit marijuana in Mexico, they are growing marijuana in national parks inside the U.S., through sophisticated networks designed to avoid the difficulty of smuggling drugs across the border. Notorious for their brutality and criminal infestations of all elements of Mexican society, as well as rampant encroachments into the U.S., the state of the marijuana market as it exits under marijuana prohibition only fuels organized crime to grow to powerful sizes. As a result of marijuana legalization victories in Colorado and Washington state, estimates reveal that drug cartel profits could be substantially reduced. Even if marijuana legalization nationwide somehow creates greedy profit-seeking corporations, such corporate-control will nonetheless be a much better alternative to our current system of cartel-run markets. Marijuana legalization could create a tobacco-type industry for cannabis conglomerates, however stringent regulations imposed on emerging marijuana markets may control this problem.

For instance, Washington State mandates that only 334 marijuana stores can operate across the state. An individual can only own up to three retail marijuana licenses. When an individual does hold multiple licenses, he cannot have more than 33% of the licenses in a county. Retail license holders cannot be licensed to produce marijuana. Regarding advertising and labeling, ads or product labels cannot be misleading, encourage over-consumption, claim that there are therapeutic benefits, or show children, toys, child-like cartoons, or any such imagery which is meant to encourage child marijuana use. Marijuana stores are not able to advertise within 1,000 feet of schools, on buses, or on public property, and all advertising shall have health and safety warnings. Such strong restrictions on the marijuana industry should prevent the dangerous concentration of corporate power of the kind once wielded by the tobacco industry.

criminal background check.jpgWhen the Government charges a defendant with a crime, the defendant has a right to a fair trial. What defines a fair trial is a rather extensive topic that is subject to rigorous debate. Discovery, which is the part of the trial where evidence is examined and exchanged between the government and defense attorney, is a key element to a fair trial. Most often discovery can result in a plea bargain or the case being dismissed altogether. In a criminal case, discovery mostly imposes duties to disclose information upon the Government. There is very little the defense has to tell the government; for example, the defense may be required to disclose the use of expert witnesses or the use of an insanity defense.

When the defense cannot fully access or discover evidence, serious due process problems arise. Currently, the government sometimes employs a trial method that completely disguises and conceals critical evidence in drug cases. Across the Country, a secretive U.S. DEA unit is using intercepted phone calls, wirtetaps, informants and a massive database of telephone records to help prosecutors and law enforcement allegedly catch drug dealers. This unit is called the Special Operations Division (SOD) and it operates in a thick cloak of secrecy. The heightened confidentiality that SOD information receives is creating problematic situations that undermine the rights that a criminal defendant has to a fair trial.

When the prosecutor or other government officials receive SOD documents, they are marked with “Law Enforcement Sensitive”. This categorization keeps the documents confidential and prevents the defense attorneys from knowing that they exist. In fact, sometimes the prosecutor does not even know that SOD documents were used in the trial that he or she is prosecuting. Law enforcement covers up SOD documents with a process called “Parallel Construction”, and the following example will demonstrate how this works: a police officer receives a SOD document detailing when and where a drug transaction will occur. It lists the people involved and describes how they look and what they will be driving. But, the document notes that the police officers cannot make any mention of the received information, so the officers are supposed to monitor the situation and create other reasons to stop the suspects.