Jeffrey Landrigan was executed Tuesday night after the Supreme Court lifted a stay issued by the District Court.

The State of Arizona along with other states uses a three-drug execution protocol. One of the drugs is the barbituate, sodium thiopental. Hospira Inc. is the only manufacturer licensed by the F. D. A. to produce sodium thiopental. Hospira Inc. is out of sodium thiopental and will not have more until the beginning of the year.

Jeffrey Landrigan’s lawyers requested a stay of the execution until legal sodium thiopental could be obtained. The District Court ordered the government to provide information regarding the source and production of the sodium thiopental to be used in the execution. Arizona refused to comply with the judge’s order. Therefore the District Court ordered a stay of the execution pending evidence that the three-drug execution protocol, without legal sodium thiopental, would not cause Landrigan pain and suffering. The Ninth Circuit upheld the stay and the state appealed to the Supreme Court. A five judge majority (Roberts, Alito, Scalia, Thomas, and Kennedy) reversed the stay saying that Landrigan had failed to provide sufficient evidence that the drug was not safe or could result in pain to Landrigan.

Of course, the sad irony to the reversal of the stay is that the District Court ordered the state to provide information from which the defense could determine whether or not using the substitute sodium thiopental was safe and the government refused. Now the Supreme Court reversed the stay on the basis that the defense did not have the information that the state refused to provide.

Yesterday, we looked at racial disparities in arrests for marijuana possession in California. Of course most drug arrests are based upon some type of search. There are three types of contacts between police and citizens. First there is the consensual contact in which both parties agree to the contact and can terminate it at any time. A search can only occur in a consensual if the citizen give knowing consent. In the second type of contact, the detention, the officer must have a reasonable suspicion of criminal activity in order to detain the person even for a short period of time and must also have a reasonable suspicion that the person is armed in order to frisk the outside clothing of the individual. In the third type of contact, the arrest the officer must have probable cause to believe that the individual violated the law in order to search the individual and the area within easy reach of the person.

Today we will look at a study done in New York for the Center for Constitutional Rights by Prof. Jeffrey A. Fagan of Columbia Law School. as part of their ongoing litigation over the New York Police Department’s continued use of questionable searches.

Between 2004 and 2009 the police searched 2.8 million people. ¹ During an earlier part of the litigation the city agreed to have officers complete forms providing justification for each search. This study looked at the forms completed by the officers.

In thirty per cent of the searches the police either lacked sufficient cause to complete the search or ignored important information allow Professor Fagan to decide whether or not the stop was legal. ²

In 150,000 stops where the officer used his/her discretion to make the stop without a citizen filing a police report or without prior investigation and where there was sufficient information to make a determination the search was illegal.

Professor Fagan found that the more African Americans in the neighborhood the more searches were performed. Two to three times as many searches occurred in neighborhoods having the most African Americans as in those neighborhoods having the least African Americans. In an eight block African American neighborhood in Brownsville, Brooklyn, thirteen times more searches were performed than the average for the city as a whole. According to an article in the New York Times, “force was 14 percent more likely to be used in stops of blacks and 9.3 percent more likely for Hispanics, compared with white suspects. ” But even in white and mixed neighborhoods African Americans were more likely to be searched.

One of the justifications given by the police for the searches is that they help get guns off the street. But guns were found in only 0.15 per cent of all searches and they were more likely to be found in searches of whites than in searches of either African Americans or Hispanics.

Furthermore if violations of the law were found during the searches African Americans were 31 per cent more likely to be arrested while white were given citations.

A study conducted by the Drug Policy Alliance and the California State Conference of the NAACP found that minorities were significantly more likely to be arrested for marijuana possession in twenty-five cities in California than Whites. ¹

The study found that African Americans are arrested four to twelve times as often as Whites.This happens despite the fact that Whites way outnumber African Americans in each of the cities and Federal government statistics show that more Whites use marijuana than African Americans. For example in Los Angeles seven times as many African Americans as Whites are arrested for possession of marijuana. While African Americans are 9.6 per cent of the population in Los Angeles nearly 35 per cent of those arrested for marijuana possession are African American. Likewise in San Diego, 6.5 per cent of the population is African American, but they comprise 29.5 per cent of the possession arrests. In the City of Torrence African Americans are only two per cent of the population but they account for 24 per cent of the marijuana possession arrests. In Sacramento 13.7 per cent of the population is African American and they are the subjects of over half of the possession arrests. In none of the cities examined did the African American percentage of the population begin to reach the percentage of marijuana possession arrests.

As Michelle Alexander stated in The New Jim Crow, the authors of the Drug Policy Alliance study argue that the extraordinary number of arrests of African Americans is not caused by the racism of individual officers. ² Rather it is a systematic result of police being assigned primarily to high crime areas where indigent people, often minorities, live.

In a postnote the authors point out that possession of marijuana is scheduled to become an infraction next year in California and that legalization is on next month’s ballot. But the authors point out that making marijuana possession an infraction is unlikely to change the racial composition of the arrests and that only legalization can change that. However marijuana legalization will not change the racial nature of arrests for other drug crimes. The penalties for crack cocaine, under Federal law, remain much higher than the penalties for powder cocaine despite the fact that African American arrests for crack cocaine are significantly greater than the percentage of African Americans who use crack and White arrests for crack are much lower than the percentage of Whites who use crack. ³

Employee drug testing is expanding. Now many companies test not only for illegal drugs but also for many prescribed medications.

On one level that makes sense. Many prescribed pain killers can affect one’s ability to do a job and can increase the chances of severe injury on the job.

But drug tests only tell you what medications are in the blood system. They do not tell you the quantity of the drug or how the drug affects the individual and different drugs affect different people in different ways. Without the pain killers many people would not be able to hold down a job. Often the pain killers are prescribed for on the job injuries.

As a result of these tests good employees are being fired for taking prescription medications.

These tests may of may not be a Fourth Amendment violation. The Fourth Amendment prohibits searches and seizures without probable cause. A blood test is considered to be a search. However, the Fourth Amendment applies only to searches by governmental bodies. But in some cases Federal and state governments are pushing companies into performing the drug cases. In those situations the courts may consider the searches to be violations of the Fourth Amendment. In other situations states may have privacy laws or amendments to their constitutions which apply to private enterprises as well as to governmental bodies. Several suits are currently pending challenging company testing for prescribed medication.

Modern medical thought calls for the use of narcotics to control pain where in former years patients may have been told to endure the pain or to take two aspirin and go to bed. “Quest Diagnostics, a prominent provider of workplace drug tests, said that the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent last year alone.”

Sue Bates was fired from her assembly line job working for Dura Automotive Systems after she tested positive for hydrocodone a pain medication prescribed by her doctor for back pain. Dura’s new policy prohibited employees from using any medication that warns against driving or using heavy machinery regardless of whether or not the medication has a detrimental side effect on the individual. Many drugs now carry such warnings ¹ If all companies followed Dura’s lead the unemployment problems would be significantly greater and it would be hard for companies to find qualified employees.

In the predawn hours of November 15, 2007 Cuyahoga Metropolitan Housing Authority Police Officer Eric Williams notice an Oldsmobile legally parked in a housing complex. The engine was running and there was a person in the car but slumped over and barely visible. Williams checked the registration and found no warrants for the owner of the car. He then parked his patrol car, blocking in the vehicle and he approached the window. Demetrion Gross opened up the window to talk to Williams.

Williams asked him for his ID. Gross did not have it on him but he answered the officer’s questions about his name. Williams looked it up and found that Gross was wanted on a warrant for being a convicted felon in possession of a weapon.

Williams arrested Gross on the warrant and took him to the station. Gross was searched and no weapon was found. Gross requested permission to use the rest room. After he left the rest room a gun was found in it. Four days later Gross was informed of the investigation to determine how the weapon got into the jail. He refused to give a DNA specimen. A search warrant was obtained for the specimen. It was positive. He was charged as a career offender ¹ with possessing a weapon by a convicted felon and two months later while in custody he requested to speak with an ATF agent and confessed possession of the gun.

Gross moved to suppress the gun, DNA swab and confession. Both the trial court and the appellate court found the stop to be illegal. It was done without a reasonable suspicion of criminal activity and by blocking the Oldsmobile with the police vehicle. Gross reasonably believed that he was not free to leave. Once a message is conveyed that an individual is not free to leave, it is no longer considered a consensual stop and the detention must be supported by a reasonable suspicion of criminal activity.

Over the last forty years the Supreme Court has limited the exclusionary rule which mandates that illegally obtained evidence be suppressed in criminal proceedings. One way it has limited the exclusionary rule is by extending the circumstances under which “the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstances so as to remove the ‘taint’ imposed upon the evidence by the original illegality.”

In this case the trial court found the gun, DNA, and confession to be so attenuated as not to be caused by the illegal stop. However the appellate court while agreeing with the trial court on the DNA and the confession, disagreed on the gun and ordered it suppressed.

In considering whether evidence is sufficiently attenuated from the illegality to be be admitted the Sixth Circuit looks at three factors: the length of time between the illegal arrest and the discovery of the evidence, intervening acts, and the flagrancy of the official misconduct. The confession, the court found to be admissible, because it occurred two months after the arrest, was initiated by Gross and it occurred after Miranda warnings. The court found the DNA to be admissible since it was obtained pursuant to a judicially authorized search warrant several days after the arrest.

But the court suppressed the gun. The government argued that the gun should be suppressed because it was found after Williams discovered the arrest warrant. But the majority opinion pointed out that if the gun was suppressed, the Fourth Amendment would be voided since any officer, without a reasonable suspicion of criminal activity, could arrest a person. find a warrant and any contraband seized would be admissible.

The Eighth Circuit’s decision in United States v. Brewer is rather meaningless and for the most part unworthy of comment. There is a decent search issue but it is based upon confusing testimony in the District Court and once the Court of Appeals settles the evidentiary question or thinks it has settled the question the decision to uphold the search is predictable. The other issues raised by the defendant such as the sufficiency of the evidence or the failure of the trial court to inform the jury of the possible sentence in the case are clearly inane and equally unworthy of comment.

But Judge Bright’s dissent on the 370 month sentence for sales of 150 grams (5 plus ounces) of rock cocaine are compelling and something that more people ought to understand. Judge Reade who was the sentencing judge sentenced the defendant to 370 months in compliance with the advisory Sentencing Guidelines. If the case happened on the other side of the freeway which runs through the Northern District of Iowa it would have been assigned to Judge Bennett. Judge Bennett generally, using the discretion assigned to Federal judges by the Supreme Court in Kimbrough and treats rock cocaine the same as powder cocaine. Judge Reade, to the contrary used the 33:1 ratio found in the Guidelines at the time Brewer was sentenced. At the time of the sentencing Brewer would have been sentenced to 240 months (including a 20 year mandatory sentence that has now been reduced to 10 years) when treating rock and powder cocaine the same. Under 18 U.S.C. 3553(a) Federal judges are supposed to consider the sentences imposed by other judges in similar cases in order to prevent significant disparity in sentencing for defendants who commit similar crimes. Yet this apparently does not happen in the Northern District of Iowa or in a number of other jurisdictions.

As Bright points out that although Whites use drugs more often that African Americans it is African Americans who get prosecuted for crack cocaine and get the higher sentences.

The guidelines for crack cocaine are plainly unreasonable. They are the same as the guidelines for second degree murder. In fact the average Federal prison term for crack is greater than the average sentence for murder.

Furthermore at the current cost of imprisonment it will cost the Federal government $780,000 to keep Brewer in prison throughout his term. If he lives to complete the term the government will then have to pay for ten years of supervised release.

This makes no sense. Brewer will be imprisoned until he is approximately 60 years old and studies have shown that few people commit major crimes when they are 60 years old. The lengthly prison sentence is not necessary to protect society. Nor is it an appropriate for punishment. The message it gives is that a series of relatively small sales of rock cocaine to a government agent is more horrendous than murder. I doubt we want to give that message. The other message it gives is that we prefer to lock up significant numbers of African American men for relatively small sales of crack than deal with the race problems in this country.

The irrationality of our sentencing laws promotes lack of respect for out criminal justice system and actually increases the amount of crime. Knowing that regardless of what they do African American men are likely to end up in prison, for long periods of time, only encourages them to use and sell drugs. Yet they still use it less frequently and in smaller numbers than Whites who are not targeted by law enforcement and are less likely to be incarcerated.

Umar Farouk Abdulmutallab, popularly known as the Underwear Bomber, who is accused of attempting to blow up an airplane as it landed in Detroit on Christmas Day is representing himself in his Federal trial.

It is rarely a good thing to represent oneself. A defendant who is not a lawyer is held to the same standards as a lawyer in regard to the rules of evidence, admissibility of evidence, and examination of witnesses as a lawyer would be held. Furthermore, it becomes difficult for a jury to distinguish as to whether the defendant is testifying as a defendant or is examining a witness as a lawyer. In fact in every case where I have heard a defendant request permission to represent him/herself the judge has informed the defendant of the old saying that the person who represents him/herself has a fool for a client. While it usually brings a slight laugh from the audience it is a serious matter. The Supreme Court has ruled that a defendant, subject to minimal educational and verbal abilities has a right to represent him/herself. The judge is required to voir dire the defendant to insure that the defendant is familiar, at least to a limited degree, with court procedure and that he/she has at least a minimal amount of education. In the case of Abdulmutallab he has a college education and while he is from Nigeria he is fluent in English and therefore he met the test.

One person who I feel sorry for is Anthony Chambers who has been appointed standby counsel for Abdulmutallab. Standby counsel should be distinguished from advisory counsel. The role of standby counsel is to sit in the audience and be prepared to immediately take over, if at some time during the trial the judge determines that the defendant is unable to defend him/herself. Advisory counsel sits at counsel table with the defendant and answers the defendant’s questions about evidentiary matters or other legal matters that come up during trial.

I have served as standby counsel. I was required to sit through a trial and then towards the end, when the judge though the defendant had made a big enough fool of himself, ordered me to take over the trial in middle of cross examination of a witness. Not fun. The defendant was charged in a number of counts and I managed to get a not guilty for all but one count. After trial one of the jurors came up to me and told me that the defendant would have been found guilty on all counts if I had not taken over the trial. But it is not a role any lawyer wants to be in.

Abdulmutallab requested the court to prohibit Chambers from reviewing the government’s discovery documents provided to the defense. The court rightly denied the motion. If Chambers must be available to take over the defense with five minutes notice, he must be totally familiar with the evidence for and against Abdulmutallab. This can only be done if he has access to law enforcement reports, expert reports and other items that might be in the discovery.

Attorney General Eric Holder announced that the government will continue to prosecute marijuana case regardless of how California votes next month on Proposition 19. Proposition 19 will abolish California laws making possession of marijuana for personal use illegal for adults.

But Holder will have little power over the use of marijuana under Proposition 19. It will legalize personal use and possession of an ounce of marijuana. But the Federal government rarely prosecutes such small cases except in national parks and properties under the control of the Federal government. The proposition allows people to grow marijuana on private property as long as the area used to grow the marijuana does not exceed 25 square feet. But the Federal policy is not to prosecute cases involving under 100 plants which needs more than 25 square feet. The Feds could attempt to prosecute growers and sellers of marijuana. But this will only be legal in towns and counties where the local government passes enabling legislation. The growers and sellers will have to be licensed. In some cases the local government may sell the marijuana. Is Holder going to send the FBI in to arrest the mayor if a city is selling marijuana? What is the DEA going to do if the marijuana is protected by police officers? ¹

Robert Lozano, Sr. was tried and convicted for attempted possession of marijuana for sale in Barrow, Alaska. The charges were based on the controlled delivery of a package sent to him from California.

At the trial, the government introduced evidence, including marijuana, found in a probation search ¹ of his residence eight months prior to the controlled delivery. Lozano objected. But the admission was upheld by both the trial court and the appellate court.

Federal Rule of Evidence Rule 404(b)

provides that the district court may admit evidence of prior bad acts if it (1) tends to prove a material point; (2) is not too remote in time; (3) is based upon sufficient evidence; and, (4) in some cases, is similar to the offense charged.

The Ninth Circuit found that the marijuana seized in the probation search met the criteria. It proves that Lozano knew what marijuana was. Eight months is not too distant in time. Money smelling of marijuana, in the earlier search, was found in Lozano’s room and therefore it was backed by sufficient evidence. Finally, marijuana was found in both the probation search and the controlled delivery. But even if it was admissible under Role 404(b) its probative value must substantially outweigh by the danger of unfair prejudice for it to be admissible under Federal Rule of Evidence 404. The court found that “evidence of prior drug distribution is clearly probative of Lozano’s intent and knowledge, and prejudice was limited by a cautionary instruction” ²

Based upon Ninth Circuit precedent the court found that probable cause was not necessary to seize the marijuana. Only a reasonable suspicion is necessary and that existed based upon questions, such as do they search packages for drugs asked of the postmaster by Lozano ³ prior to the delivery. ⁴

Finally the court found that the 22 hours that passed between the seizure of the marijuana and its search by a drug smelling dog in Fairbanks was reasonable based upon the dog not being available in Barrow.

An automobile mechanic discovered a GPS device attached to Yasir Afifi’s vehicle when Afifi took the car in for an oil change. Why the FBI attached the device to Afifi’s car we do not know. Afifi lives in California where the Ninth Circuit has ruled that a search warrant is not necessary to place a GPS device on a vehicle. If he lived in the District of Columbia the result would be different because the DC Circuit has ruled that a warrant is necessary ¹ and the FBI would have had to file an affidavit showing probable cause with the court in order to obtain a warrant to place a GPS device under the vehicle.

What we do know is that Afifi is an Arab-American, that his father was active in community affairs and that Afifi maintains contact with friends and family in Egypt. None of these are good reasons and they would not support a search warrant. But as long as the Ninth Circuit finding that GPS attached to a vehicle on public roads does not violate an individual’s reasonable expectations of privacy remains in effect, Afifi’s has limited legal recourse.

This is just one more reason that we need the Supreme Court to review the issue.The Supreme Court in United States v. Knotts ruled that it did not violate the Fourth Amendment to place a beeper in a barrel of chloroform on the back of a truck as a means to aid agents keep track of a vehicle during a short trip. The Ninth Circuit and the Virginia courts have ruled that this justifies the use of GPS to keep track the the whereabouts of a vehicle on a public road. But the technology has changed considerably since the 1983 Knotts decision and as I have suggested before now it is time for the Supreme Court to review the situation, particularly in light of the mixed decisions of lower courts and state courts.