Last week a Federal/State task force raided two Los Angeles area marijuana dispensaries. At first blush it would appear that the Feds were violating the promises made by President Obama during the campaign and later by Attorney General Holder not to interfere with state medical marijuana laws.

While the DEA, FBI, Internal Revenue Service, Los Angeles County Sheriff’s Department, Los Angeles Police Department, Torrance Police Department and Culver City Police Department all took part in the raids, the raids appear to have been directed by State authorities with the feds only helping out. The Los Angeles Police Department applied for the Search Warrant which was granted by a Superior Court judge. This would indicate that the affidavit supporting the search warrant alleges a violation of state law. But no one involved–neither the police department or the DEA are publicly admitting what violation occurred.

The task force raided Organica Collective in Culver City, and the Overland Gardens Collective in West Los Angeles . The clubs are owned by Jeffrey Joseph. His house was also raided and he was arrested. He is now out on bail. They seized 100 pounds of marijuana, 200 live plants, and $100,000 in cash. None of this necessarily indicates anything other than a dispensary which sells marijuana to patients who have the approval of their doctors to legally possess marijuana.

The Organica Collective posted a statement on opposingview,com denying any violation of state law.

The law requires that the police file the search warrant affidavit within ten days of the search and it then becomes public. Therefore it should be filed within the next week and we will know the allegations.

Last week the Seventh Circuit Court of Appeals denied the appeal of Kenneth Kirkland who was convicted of possessing over fifty grams of cocaine and sentenced to twenty years in prison and an additional ten years of supervised release.

In the early morning hours of September 2, 2007, Fairview Heights, Illinois police officers began an investigation of Kirkland for possession of cocaine. The investigation took them to the local Ramada Inn. Using police dogs to sniff Kirkland’s vehicle which was parked at the hotel they believed that there was cocaine in the vehicle. After he came out of the hotel and started to drive the vehicle, the officers pulled him over on the pretext that they were stopping him for a cracked windshield.

While an officer was issuing Kirkland a warning, a sergeant and a DEA agent drove up. Without reading Kirkland his Miranda warnings they asked him some questions and for permission to search the vehicle. Kirkland agreed. Rifle cartridges and cocaine were found. He was arrested and 48 hours later transferred to DEA custody. Once in DEA custody he was read his Miranda rights and he took responsibility for the cocaine. At approximately 3:00 p.m. on September 4 he was taken before a magistrate.

On November 30 he (actually his attorney) filed a motion to suppress evidence. The motion did not mention the statements made to the police or the DEA. He claimed that his detention was without reasonable or probable cause and that the length of the detention was excessive. He filed a brief in support of the motion on February 1, 2008 but again did not discuss the statements. A hearing was held on February 28. At the hearing his counsel said

Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.

The Court refused to suppress the cocaine because the search of the vehicle was supported by probable cause. The Court also refused to suppress the statements made while in Federal custody because he had been given Miranda warnings and it did not suppress the roadside statements because Kirkland (again actually his counsel) did not specify the nature of the statements.

The Fourth Amendment prevents lengthy detentions prior to an appearance before an magistrate during which peace officers can ruthlessly interrogate defendants. The Supreme Court has decided that a defendant must be taken before a magistrate for a probable cause hearing within 48 hours of arrest. Rule 5(a) of the Federal Rules of Criminal Procedure mandate that a defendant be brought immediately before a Federal magistrate and that any statement taken prior to the appearance before the magistrate but more than six hours after the arrest be excluded. Time held in local custody is excluded unless the Federal authorities colluded with the local police.

In refusing to grant the defendant’s appeal the appellate court found that Kirkland waived his right to have appellate consideration by failing to timely move to suppress the statements. Not only did Kirkland’s counsel wait until the hearing on the motion to suppress the cocaine to bring up the statements but his counsel failed to provide any legal reasoning in the motion to support the suppression of the statements. Furthermore counsel failed to meet deadlines set by the trial court for motions to suppress in that the original motion did not ask for the suppression of the statements.

The logical problem with the Seventh Circuit’s denial of the appeal is that Kirkland did not fail to meet any deadlines or to fulfill any duties. He is being punished for his counsel’s failure to meet deadlines and properly move for suppression of the statements. Presumably, although there is no indication in the appellate decision his appellate counsel (let’s hope that his trial counsel is not doing the appeal) is filing a writ of habeas corpus alleging incompetence of his trial counsel for failure to meet the deadline and for failure to move in a timely manner for suppression of the statements.

Last month Attorney General Eric Holder announced that government resources will not be used to raid medical marijuana distributors in those states where medical marijuana is legal in compliance with President Obama’s desire not to spend money busting dispensaries. Yet last week the DEA raided Emmalyn’s, a medical cannabis dispensary in San Francisco.

One question that must be asked is who is in charge. Does Holder control the DEA or does the DEA control Holder. President Obama has yet to appoint a director for the DEA. Bush appointee Michele Leonhard is the acting director.