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.

Governor Schwarzenegger signed legislation making possession of an ounce of marijuana an infraction, much like a traffic ticket.

The legislation will not change the penalty for possession. It will remain $100. But it will save the state a lot of money. Possessors of marijuana will no longer be entitled to a jury trial or a public defender. Trials in traffic court are much cheaper and are often conducted by a commissioner instead of a judge.

While the legislation will only affect simple possession of marijuana I could not help but think about the tremendous waste of resources used in the prosecution of marijuana cases, yesterday as I sat in court watching a Superior Court judge spend fifteen minutes of his time, the DA’s time and the Public Defender’s time denying bail to a man charged with a ten dollar sale of marijuana. Of course the cost of the court and the attorneys is minimal compared to the amount it is going to cost the county to keep the man in jail until his preliminary examination. This doesn’t even include the cost of caring for the man and his family since he is going to lose his job with a construction company while he is in jail.

Of course the law may be in effect for only a short period of time. California is voting on legalization next month. But neither decriminalization or legalization will take care of the problems of the man I saw in court today.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

Eddie Garcia and Nancy Martin Perez were pulled over due to having an obstruction hanging from the windshield of their truck. Their identification, registration and insurance was checked. They were interviewed separately and gave contrasting statements on where they were going and why. A computer check was initiated. During the check the officer asked to look in their trailer. He took a 30 second look with Garcia and they shut the trailer. After the computer check is completed Garcia is given a verbal warning. Garcia and Perez are told they can leave. Garcia shakes hands with the officer.

As they begin to leave the officer asks permission to search the trailer. Perez gives permission. The officer search the trailer. He finds a fake wall hiding marijuana.

Garcia and Perez are arrested. Garcia pleads guilty reserving the right to challenge the search.

There is no question that the initial seizure is legal. The officer stopped Garcia and Perez due to a violation of the traffic laws. The officer carried out a legal check of licenses, registration, and warrants. This was done in a prudent manner without extending the time of the detention. The detention ended and the couple were told they could leave. Then the officer asked to search the trailer. Perez gave permission. Since they were free to leave at this point they were not coerced into giving permission. Thus the search was legal.

Assuming the facts in the decision are accurate the only question is why was Perez so stupid as to give permission for a search, knowing that the truck was full of marijuana. The Fourth Amendment prescribes searches in all case except where specific exceptions occur. However anyone can waive that right. In Arizona v. Miranda the Supreme Court ruled that a waiver of the right to remain silent must be knowing and intelligent. Furthermore it required that the waiver be shown on the record through the use of what is now well known as the Miranda warnings. Isn’t it time that similar waivers be mandated prior to a waiver of the Fourth Amendment right against unreasonable searches?

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.

The Ninth Circuit Court of Appeals upheld the forfeiture of the proceeds of the sale of a warehouse worth $345,000 used to grow marijuana in Oakland.

Thomas Grossi owned an Oakland warehouse raided by the California Highway Patrol and the DEA in June of 2004. They seized 2400 plants. He was indicted and convicted of maintaining a property where marijuana was grown and sentenced to two and a half years in prison and forfeiture of the warehouse.

On appeal he argued that forfeiture of the warehouse violated the Eighth Amendment’s prohibition of cruel and unusual punishment. However the Ninth Circuit ruled that since the maximum permissible punishment is over $345,000 the punishment is not cruel and unusual.

An informant told Detective Josh Davis of the North County Metropolitan
Enforcement Group in Chesterfield, Missouri that David Wise and Brian Sievers were growing marijuana in Sievers’s basement.

Detectives Davis, Jeffrey Seerey, and John Cochran went to Sievers’ house for a “knock and talk.” They knocked on the door. Sievers answered it. The officers identified themselves and told Sievers the purpose of the visit. Sievers said, “Who ratted me out? That’s all I want to know.” [Brilliant, an admission.] The officers then read Sievers his Miranda rights. Sievers then gave a full confession including telling them that there were over a hundred plants in the basement (actually there were 312) and that his friend David Wise was in charge of caring for the plants. [Now who is ratting who out]

After the officers searched the house, with Sievers consent, [Brilliant] he took them to Wise’s St. Louis residence.

This time Seerey and Cochran did the “knock and talk” while Davis stayed in the car with Sievers. They knocked on the door, as Wise is leaving. They ask him if he would prefer to talk outside or inside. Wise says inside. [Just what the officers wanted--a chance to get inside.] Then Wise invites them into his bedroom away from his family. He looked nervous so the officers did a pat search and found a packet of marijuana in his pocket. Seerey tells Wise about the visit to Sievers’. residence. Wise says he doesn’t believe the officers. They bring Davis and Siever inside. Siever tells Wise, “They’re onto us, they got the whole grow.” [Another admission] Wise is read his Miranda rights and he gives a complete statement incriminating himself and Sievers.

Prior to trial Wise moves to suppress his confession, statements, marijuana packet and marijuana seeds found on his dresser. Motion denied.

On appeal the Eighth Circuit in United States v. Wise confirmed the conviction holding that there was sufficient evidence to convict Wise, that the statements were properly admitted and that the seizure of the marijuana packet and the seeds were legal.

Surprise, surprise, you voluntarily talk so much both before and after the Miranda warnings and then the evidence is used against you. On top of that you invite the officers into your bedroom where marijuana is in plain view and then they dare to seize it.

If Sievers and Wise had not opened up their big mouths they would not have been arrested. Apparently the informant had not provided enough information for a search of the residence. Otherwise the officers would have gotten a search warrant. But by talking the defendants gave the officers enough information to search their residences and to arrest them. They also gave them the information used to prove the case at trial. I do not know how many times I have told defendants that “Anything you say can and will be used against you.” Police don’t ask question unless they need the information to hurt you and they are smart enough to use whatever you say against you.

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.