Articles Tagged with “possession of marijuana”

Today marks the 41st anniversary of the landmark decision of South Dakota v. Opperman[1][2] in which the Supreme Court laid out the basis for what would be known as the Inventory search exception to the warrant requirement of the fourth amendment. This decision has allowed for a dramatic expansion in the number of warrantless searches the State can conduct.

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The Case

The case that made up the basis of Opperman was surprisingly mundane, and yet indicative of the kind of cases that would be affected by this landmark ruling. In the early morning hours of December 10th, 1973, Mr. Opperman’s car was found illegally parked in downtown Vermillion, South Dakota. Pursuant to police procedures, the officers impounded the vehicle. However, as the officers impounded the car, they noticed a number of valuable items strewn about the interior of the vehicle. The officers, fearing that the items could be stolen opened the vehicle and inventoried the items inside of it. While searching the interior of the vehicle, the officers found a small amount of marijuana located in the glovebox. When Mr. Opperman came to the police station to retrieve his vehicle the following day, he was arrested on the spot for possession of 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.

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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:

End Prohibition - Legalize Marijuana
With 2017 fast approaching and prospective state representatives competing for votes, a Texas sized problem remains unaddressed in the Texas medical marijuana program. In 2015, The Texas legislature passed Senate Bill 339 authored by Sen. Kevin Eltife (R-Tyler) and Stephanie Klick (R-Fort Worth).[1]

SB 339, otherwise known as the Texas Compassionate Use Act, was a start on the road to marijuana reform for Texas. The bill was the first formal recognition from Texas that marijuana has medical use. The bill was inspired by Dr. Sanjay Gupta’s “weed” documentary series highlighting the efficacy of high CBD marijuana strains for treating epilepsy in children. With the combined efforts of medical activists and strong pressure from the Epilepsy Foundation, the bill passed in the waning days of the 2015 session and was signed by Governor Abbott.

Overview of The Compassionate Use Act

iStock_000009135835_ExtraSmall.jpgSurpassing all other countries in the world on modernization of marijuana laws, legislators in Uruguay passed a bill in December of 2013 to legalize and regulate marijuana nation-wide. Uruguay’s president voiced strong support for the bill, noting a legalized market would reduce illicit drug trade, and signed the bill into law. Uruguayans over the age of 18 may legally grow six marijuana plants, form smoking clubs of 15-45 members with a production limit of 99 plants a year, and buy up to 40 grams or 1.4 ounces each month from government-regulated retail shops. See Uruguay’s New Marijuana Laws here.

Other Latin American countries are not far behind in the movement to reform drug laws away from ineffective criminalization and toward sensible regulations. In Ecuador, lawmakers have debated a bill that would lessen the penalties associated with marijuana. The head of Argentina’s counter-narcotics agency, Juan Carlos Molina, supports debating whether Argentina should follow its neighbor Uruguay’s example.

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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.

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.

iStock_000005542834XSmall (2).jpgUnmanned Aerial Vehicles (UAVs) revolutionized the War in Afghanistan. These drones allowed the military to perform a variety of operations while reducing the threat of injury to human soldiers. In the battlefield, it may be somewhat easy to rationalize the use of UAVs, especially against a foreign terrorist threat. Your feelings might dramatically change when you think about your local police force using UAVs to fight crime. This idea may seem a little bizarre and unrealistic. However, there are Texas counties currently allowing Law Enforcement to use UAVs and others who are engaging in UAV pilot programs.

UAVs enable the police to conduct unmanned surveillance over public and private areas. The main focus of UAV surveillance is to monitor or observe criminal behavior. While monitoring public areas is seemingly reasonable, the invasion of privacy UAVs present is cause for concern. For example, the Austin police department used a UAV in 2009. The Austin police department was executing a search warrant on a suspect’s house. The suspect was a drug trafficker and was believed to be heavily armed and dangerously. The police were concerned that the suspect was capable of shooting down a helicopter, so they conducted a sweep of the property with a UAV before executing the search warrant. This UAV, called the Wasp, was particularly special because it was the size of a small bird, which would be undetectable to the unwary eye.

Feelings about drones differ amongst Texas counties. Currently, Harris County does not to take part in UAV pilot programs. It initially participated in a UAV program, but it withdrew its participation in 2007. On the other hand, Montgomery County has a $300,000 Shadowhawk helicopter drone (developed from Vanguard Industries). It is a 50 pound helicopter with an extremely powerful camera mounted in the front with infrared capabilities. Assigned to man this drone are Sgt. Melvin Franklin, a licensed pilot, and Lt. Damon Hall, who is head of the department’s crime lab and crime scene unit. Montgomery County paid with this money with a homeland security grant. This drone is intended “to assist the County in a number of critical operations to include emergency management, search & rescue, and S.W.A.T. operations.”