The Ninth Circuit upheld a marijuana cultivation case and refused to apply an entrapment by estoppel defense where there was no evidence that the defendants relied upon a Federal official’s claim that the grow was legal.

Entrapment by estoppel occurs when

(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of all the relevant historical facts, (3) affirmatively told [the defendant] the proscribed conduct was permissible, (4) that [the defendant] relied on the false information, and (5) that [the] reliance was reasonable.

Dale Schafer and Marion Fry are a husband/wife team. She is a doctor and a cancer patient. He is a lawyer. They live in Cool, California. ¹ After she was diagnosed with breast cancer and received a doctor’s recommendation that she use marijuana they began to grow marijuana. Eventually they grew more and a dispensary was formed. Throughout the period they kept local law enforcement officer informed of their activities and were assured that there actions were legal.

But they were eventually arrested on Federal charges by the DEA. Unlike California state law, Federal law does not allow for medical marijuana.

Prior to trial the District Court granted a motion made by the United State Attorney to prohibit Shafer and Fry from using an estoppel defense at trial. The Court ruled that even if the local agents could be considered Federal agents there was no evidence that Shafer and Fry relied upon their word in deciding to grow marijuana. In fact, Fry’s written recommendation that she gave to patients recommending the use of marijuana specifically warned that marijuana was not legal under Federal law. Therefore they can not be said to have relied upon the local officers’ alleged statements telling them that the grow was legal.

A second argument made by Shafer and Fry was that they are the victims of sentencing entrapment. Sentencing entrapment occurs when law enforcement agents encourage individuals to grow more marijuana or to sell more drugs in order to increase their possible sentence. But here there was no evidence that any agent or officer encouraged Fry and Shafer to grow more marijuana. Even if the local sheriffs told them that their grow was legal it does not mean that they encouraged Shafer and Fry to increase the size of the grow.

Of course one lesson to be learned from Shafer and Fry is not to be greedy. As any California medical marijuana grower knows, the Feds generally do not become involved in a case unless there are 100 plants or more. Shafer and Fry were growing over 100 plants.

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.

The Sixth Circuit found that McCellon Montgomery was capable of freely and voluntarily giving consent, allowing the police to search his property despite being in the hospital under the influence of morphine within hours of being shot in his back by an unknown assailant.

Montgomery was on his back porch. He was shot with birdshot or buckshot by someone hiding in nearby trees. His girlfriend called the police. The police could not find the shooter but they did see marijuana paraphernalia in the kitchen and the smell of marijuana coming from a shed in the back yard.

While they told Montgomery that they were searching for the shooter they were more anxious to find the marijuana in the shed. He gave consent. Police searched the property and found marijuana upstairs in the house and in the shed. He was charged with possession.

While being under the influence of drugs may result in consent being found to be involuntary, the court looked at other factors and found the consent to be voluntary. The nurse as the hospital testified that Montgomery was alert and oriented. Likewise the officers who asked for Montgomery’s consent found him to be lucid.

Despite testimony from his girlfriend and her mother both of whom testified that he had trouble talking the trial court and the appellate court found him to be capable of giving a knowing and voluntary consent.

But how knowing is the consent if you consent to a search for the assailant while the police search for marijuana?

California voters will vote on legalization of marijuana in November. California’s Secretary of State, Debra Bowen, certified the Tax Cannabis Initiative after nearly 700,000 people signed the petition. The petition only needed 434,000 signatures.

California would be the first state in the Union to legalize marijuana and it would still be illegal under Federal law.

A poll last year showed that 56 per cent of Californians supported the legalization of marijuana.

The initiative if passed will allow everyone over 21 years old to possess up to an ounce of marijuana. Individuals would be allowed to cultivate and transport marijuana for personal use. They will be allowed to have a 25 square foot marijuana garden.

Cities would be authorized to regulate and tax the sale of marijuana. If they do not pass ordinances regulating the sale of marijuana possession will be legal in the community but selling it would be illegal. In all cases it will be illegal to sell to minors or to involve minors in the sale of marijuana. It will be illegal to have marijuana on school grounds and smoking it in public will be illegal.

The major arguments in favor of the initiative will be the failure of prohibition and financial. Despite marijuana being illegal and millions of dollars being spent to enforce prohibition a large number of citizens use it. Medical marijuana, which is legal in California, is available primarily to the middle class who can afford going to doctors and getting certified. The truth of the matter is that almost anyone with the money can get medical marijuana but the poor cannot afford going to the doctors who charge significant fees for the certification required under the medical marijuana laws. The poor end up buying it on the street and getting arrested. One problem with the initiative is that it will still outlaw street sales. As a result many of the sellers, who are often poor immigrants or youth will continue to be arrested.

California cities continue to suffer from the recession. The Federal government has cut back on many programs that provide money to the states and California has solved many of its budget problems by cutting back on support to local communities. As a result many communities are looking forward to being able to tax marijuana sales in order to provide services to the public. Legalization of marijuana will allow communities and the state to either cut back or make better use of money currently used to arrest, convict and incarcerate users, sellers and cultivators of marijuana.

But on the other hand many police officers and parents’ groups will continue to oppose legalization. They fear that despite the laws prohibiting possession of marijuana by those under 21 that legalization will make it easier for teenagers to obtain marijuana. Furthermore they are afraid that legalization will lead to more people driving under the influence of marijuana resulting in injuries and accidents.

Recentlly, measures to legalize marijuana have been introduced in Washington and New Hampshire. Earlier this year simillar measures were introduced in California and Massachusetts. Other states are considering proposals which would either legalize medical marijuana or decriminalize its possession. In California, sufficent signatures have been raised to place legalization on the ballot.

The Washington bill would mandate the sale of marijuana in the 160 state run liquor stores and it place a 15 per cent tax on the sales. In Washington, as in other states, measures to reform marijuana laws are largely motivated by the need to find new sources for taxes.

According to Allen St. Pierre, executive director or NORML, a marijuana advocacy organization, fourteen states legalize medical marijuana and thirteen states passed decriminalization statutes.

While there is increased support for reform of marijuana laws it is unlikely that marijuana will be legalized in any state this year. There is still much opposition. Ron Brooks, president of the National Narcotics Officers’ Associations’ Coalition, for example, points out that legalization may lead to more automobile accidents.

But the stimulus for reform is growing and we are likely to see major change over the next several years. After all fifteen years ago medical marijuana was unheard of.

In an immigration matter the Fourth Circuit Court of Appeals remanded the case of Marvin Maroquin-Bran to the trial court for resentencing after the trial court erroneously applied a sixteen level sentencing enhancement for reentering the nation after being convicted of reentering the country after being convicted of a drug trafficking offense.

Maroquin-Bran reentered the country after being convicted of violating California Health and Safety Code Section 11360(a). Section 11360(a) states in pertinent part:

[E]very person who transports, imports into this
state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give
away, or attempts to import into this state or transport any
marijuana shall be punished by imprisonment in the state prison for a
period of two, three or four years.

The trial court found Section 11360(a) to be a drug trafficking offense. But the appellate court found otherwise. A drug trafficking offense is one that ” prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled
substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” a controlled substance. While Section 11360(a) does outlaw drug trafficking it also outlaws other activity. Specifically it outlaws transporting marijuana. Transportation is not an element of drug trafficking. Therefore unless there is evidence that Maroquin-Bran actually participated in drug trafficking the enhancement cannot be imposed. Case law limits the evidence of trafficking to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Therefore the Fourth Circuit remanded the case so that the trial judge can determine whether or not their is proper evidence that Maroquin-Bran committed a drug trafficking offense.

Another report shows that marijuana arrests are costly, do not decrease marijuana use and are particularly injurious to young men and African Americans. In a new report funded by the Marijuana Policy Project Foundation Jon Gettman reviewed the data in the Marijuana Almanac as to the use of marijuana, the number of arrests, and the punishment for possession of marijuana in the fifty states and the District of Columbia.

The report looks at the reasons given for incarcerating marijuana users:

a) Arresting adults and criminalizing marijuana markets is the best way to discourage
 and control  teenage marijuana use.    
b)
Marijuana’s illegality is the best way to discourage and reduce marijuana use; 
more people would use the drug if it were legal. 
c)
Marijuana arrests are not widespread and penalties are relatively mild. 
d) Smoking marijuana is not the optimal method of delivering its therapeutic
 benefits to patients. 
e)
Marijuana use is a risky activity for individuals afflicted with schizophrenia.

 

In so far as the statistics in the Marijuana Almanac are relevant the statistics do not support the reasons for incarceration. There is no correlation between greater punishment and less use of marijuana. For example, Mississippi and Nebraska have decriminalized marijuana but relatively few people used marijuana in these states. At the same time Utah and North Dakota have low arrest rates and low usage rates.

The statistics also show that while 25 per cent more African Americans use cannabis than White Americans the arrest rate for African American is three times as great as it is for white Americans.

Another statistic is that state and local governments pay 10.3 billion dollars to arrest people for possession of marijuana. Decriminalization save California taxpayers 857 million dollars in 2006.

In 1996 California voters approved Proposition 215 which approved the medical use of marijuana. In 2003 the state legislature passed Senate Bill 420 which attempted to regulate the medical use of marijuana. Among the provisions of SB 420 was a rule limiting the amount of medical marijuana an individual may possess to eight ounces and six plants. A second provision created a voluntary ID card for those who possess no more marijuana than the statute’s limits.

Patrick Kelly was arrested and convicted for possession of seven plants and twelve ounces of marijuana in his house even though he has the required permission from a doctor to use medical marijuana. The Court of appeals reversed his conviction finding that limits on the amount of medical marijuana one may possess is an unconstitutional modification to Proposition 215 and that the ID cards which are only available to those who possess less than eight ounces are also unconstitutional.

The state constitution prohibits the legislature from modifying a proposition enacted by a vote of the people. Both sides admit that any limit on the amount of medical marijuana a person can possess cannot exceed what a person needs and that different individual may need different amounts. Both sides also want to save the medical marijuana cards.

Now it is up to the Supreme Court. It has ninety days to rule.

The Fifth Circuit Court of Appeals found a lack of exigent circumstances to support a warrantless search and reversed Ariel Menchaca-Castruita’s conviction for possession for sale of marijuana

Mr. Menchaca rented a house in McAllen, Texas, In the three month period after he rented the house he did not pay any rent. The landlords decided to make a personal visit to the residence. They knocked on the door and their was no answer. They saw him through a bedroom window and he opened the door to talk to them. He offered to pay the rent but they insisted on coming into the house to see what condition it was in. When they entered they saw a bundle of marijuana. They called the police and Menchaca left the home. Before he drove away Menchaca threatened the landlord with a tire iron but was unable to make contact.

The police arrived and after talking to the landlords they immediately searched the residence. After Menchaca was arrested he made a motion to suppress the evidence on the grounds that the search was committed without a search warrant. The government responded that a search warrant was not necessary. The government claimed that the search was justified by exigent circumstances. The government pointed out that:

(1) the officer was aware that an assault had occurred shortly before his
arrival on the scene; (2) he had reason to believe that there was marijuana inside
the residence; (3) he was unsure whether additional persons were present inside
the residence; (4) he knew from experience that persons who engage in drug
trafficking often carry firearms; and (5) he was concerned for his own safety as
well as the safety of the bystanders

The Fourth Amendment requires that prior to searching a private residence the police get a search warrant. But there are a limited number of exceptions to the rule. One of the exceptions is that the police may search a residence without a search warrant if exigent circumstances exist. Among the factors to be considered in determining whether or not exigent circumstances exist are.

(1) the degree of urgency involved and amount of time necessary to
obtain a warrant;
(2) the reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

The Fifth Circuit found that the government had not provided any evidence that there was any danger to the officers or that the evidence might be destroyed. On the contrary, the evidence indicated that Menchaca had left the residence and that there was no evidence that anyone was still in the building. Furthermore it was on a week day and the officers would have no trouble getting a magistrate to sign a search warrant. In support of the reversal of the trial court ruling that the search was constitutional the appellate court found that;

(1) When Menchaca fled in his truck, he knew that Mrs. Garcia had called the
police, so he could have, and almost certainly would have, alerted any of his
accomplices to flee with him; (2) the officers knew that Mr. Garcia had peered
into the side windows of the house and had seen only Menchaca there; (3) Mrs.
Garcia never mentioned an accomplice, and the testimony at the suppression
hearing at least suggested that Ms. San Miguel might have told the officers that
there were no accomplices inside the house; (4) the front door to the residence
had been left open, indicating a hasty retreat as well as an unsecured premises,
inconsistent with the probability of additional occupants; and (5) there were no
sounds coming from inside the residence to suggest that someone might have
remained behind.

As a result the court found that it was unlikely that anyone else was in the building or that the police were in any danger. As a result it reversed the conviction finding that there were not exigent circumstances supporting the search and that Menchaca’s Fourth Amendment right to be secure in his property had been violated.