The Iowa Court of Appeals reversed a district court decision upholding a search at the residence of Pamela Robbins.

Officer Bruce Rhoads of the Tama County Sheriff’s Department obtained a search warrant for Robbins residence and for the residence of Michael Watson. The search warrant was based upon Rhoads’ experience, Watson’s criminal history, Watson’s purchases of pseudoephedrine, Robbins’ purchases of pseudoephedrine, suspicious traffic near Watson’s house, and the presence of Robbins’ car parked at Watson’s house. Pseudoephedrine is a drug commonly found in cold medications and it can be used in the manufacture of methamphetamine.

During the search of the houses drug related items were found. Robbins and Watson were charged with various drug charges.

The Fourth Amendment mandates that a search warrant must be supported by probable cause. In other words there must be a nexus between criminal activity and the place to be searched. The nexus must be great enough that “under the totality of the circumstances a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.”

Nowhere was it alleged that Robbins purchased pseudoephedrine in amounts that exceeded the legal maximum or that she purchased it more often than permitted by law. The appellate court ordered the suppression of all evidence found at Robbins’ home due to the lack of probable cause. Probable cause, according to the court cannot be based purely upon the legal purchase of a precursor drug.

Franklin Woods plead guilty to conspiring to manufacture fifty grams or more of methamphetamine. He was sentenced to 108 months. In determining his sentencing guidelines the District Court applied an enhancement for possession of a firearm. There was no evidence that Woods had a firearm or that he knew that a firearm was present. The evidence of manufacturing was found in a co-defendant’s residence. But the District Court assumed that Woods knew that there was a high likelihood that a gun would be present in a residence used to manufacture methamphetamine.

The District Court found that Woods was responsible for 53.64 grams of methamphetamine, which has a value of approximately $5,000. The Sixth Circuit Court of Appeals remanded the case to the District Court for resentencing. Previously it has determined that when there is a large amount of narcotics it is safe to assume that one of the defendants has a gun. But in those cases, barring evidence to the contrary, it has never assumed that a co-defendant had a gun when the value of the drugs was less than $60,000.

What I do not understand is why based solely upon the value or the quantity of the narcotics one can assume that a gun is present. Certainly it is not unusual to find a gun when narcotics are present. Often a gun may be present when the value of the narcotics is considerably under $60,000. But if we assume that those who would conspire together to manufacture of sell drugs know each other fairly well, based upon their knowledge of each other or the history of their relationship they may know whether a gun is likely to be present or not be present. Certainly there are any number of cases where guns are not present.

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

The Sixth Circuit found that probable cause supported the search warrant in United States v. Dyer and affirmed the conviction.

A Tennessee police officer swore out an affidavit for a search warrant for a cabin rented by Stacy Lee Glance and used by Glance and Kenneth J. Dyer. The bulk of the information in the affidavit came from an unnamed confidential informant who was facing drug charges and hoping to get the charges dismissed in exchange for his/her assistance in convicting Glance and Dyer. Glance went to trial and was found not guilty. Dyer entered a conditional plea allowing him to challenge the search warrant on appeal.

The informant claimed to have seen a drug deal involving methamphetamine in the cabin. The authorities corroborated some minor details of the informant’s statement. The informant took the officer to the cabin. Cars owned by Glance and Dyer were outside the cabin. Furthermore Dyer and Glance were seen at the cabin. Dyer and Glance have criminal records for methamphetamine related crimes and Dyer had an outstanding warrant for methamphetamine from North Carolina.

On this information the Sixth Circuit found that probable cause supported the warrant. The issue here is the reliability of the information received from the informant. The problem with this is that all of the corroborating evidence involves innocent behavior. All we really know is that the informant knows Glance and Dyer. We also know that the informant has reason to provide false information since any information that he/she provides will be used to dismiss the charges against him/her or to ameliorate the sentence for his/her criminal behavior.

Mexico has removed custodial penalties for possession of personal use quantities of drugs. But many law enforcement agents along the border are upset that the change in Mexican law will make it easier for Americans to go to Mexico, purchase drugs, and bring them back across the border.

Other countries in Central and South America have taken similar steps. Brazil and Uruguay have removed jail penalties for possession of personal use quantities. Columbia has removed jail as a penalty for personal use amounts of marijuana and cocaine. The Argentine Supreme Court has ruled out jail as a penalty for marijuana possession.

Portugal has limited the penalties for possession of up to a ten day supply to treatment, a fine or probation.

If there are four things we know about drug use they are:

1. Drug use leads to addiction.
2. Addiction is a chronic disease with relapse as a common result.
3. Putting people in prison or jail does not cure the disease.
4. The cost of putting addicts in prison is much greater than treating the disease

While legalization may be a while off in the United States bills legalizing the use of marijuana have been introduced in Massachusetts and California.

The Federal government dismissed methamphetamine conspiracy charges against Zhenli Ye Gon. The Chinese native and Mexican businessman was accused of selling pseudoephedrine/ephedrine used in the manufacture of methamphetamine knowing that the methamphetamine would end up in the United States. But two years after Gon was indicted and incarcerated the government is admitting that it cannot prove its case.

Gon, the owner of one of the largest pharmaceutical companies in Latin America went to Mongolia where he purchased 19.797 tons of hydroxy-benzil-N-methyl-acetetamine. Prior to the arrival of the chemicals in Mexico authorities seized them and used them as an excuse to search Gon’s Mexico City residence in March 2007. While they did not find any drugs in the mansion they seized 207 million U.S. dollars, 18 million Mexican pesos, 200,000 euros, 113,000 Hong Kong dollars, 11 centenarios (Mexican gold bullion coins made of 1.20565 oz t (37.5 g) of pure gold), and a great amount of jewels. Also seized were two dwellings of approximately 20 million pesos, a lab in construction of unknown value, and seven vehicles.

The seizure, which was the largest of its kind in the world, led to his indictment in the United States and to charges in Mexico. He was arrested in a Wheaton, Maryland restaurant in July 2007, but the government’s case failed to jell. Major witnesses recanted. The Mexican government refused to turn over evidence and the Chinese government put too many conditions on the US prosecutors when they wanted to depose witnesses in China. Finally the government admitted that they did not have a case and moved to dismiss.

Now Gon faces extradition to Mexico where he faces methamphetamine and weapons charges. While his lawyers will fight the extradition it is likely that he will be extradited. And that is probably what should happen. If he committed crimes those crimes occurred in Mexico–not the United States. Until 2005 the importation of pseudoephedrine was legal in Mexico. Gon legally imported it and sold it. The use of American imperial courts to charge people with drug and terrorist crimes that occur elsewhere in the world with the claim that the crimes have an effect on the United States is just an example of American imperialism. In the Twenty-First Century with the global economy practically everything has an effect on the United States. We cannot be the policemen of the world. Here the crimes, if any, occurred in Mexico. Mexico requested extradition two years ago and apparently they can do a lot better job of prosecuting Gon than the United States which kept him locked up for two years before the government realized they had no evidence against him.

The Sixth Circuit Court of Appeals upheld the conviction of Gary Roberge for attempted manufacturing methamphetamine, possession of a gun in connection with narcotics and possession of materials necessary for the production of methamphetamine.

Roberge was arrested after his then 16 year old daughter told the people that she babysat for that her father manufactured meth. They told a reserve police officer who employed them. Cleveland, Tennessee police Lieutenant Brumley then interviewed Roberge’s daughter and then got a search warrant for his house.

The affidavit supporting the search warrant requested permission to enter the residence without give knock notice. In support of the request Brumley wrote that Roberge owned guns, that he had previously been taken to a mental hospital, and that he had a bad temper. The court found that this was sufficient to find the exigent circumstance necessary to give permission for the police to enter Roberge’s residence without knocking on the door, giving notice of their presence and their purpose prior to entering the residence.

The police then went to Roberge’s residence, entered it without giving knock-notice, found him asleep in his bed with a gun nearby, and seized methamphetamine related equipment.

The trial court found that probably cause is not necessary to avoid giving the Fourth Amendment’s knock notice requirement prior to entry. A reasonable suspicion that knock notice would be dangerous, futile or interfere with the investigation is all that is needed. But the police officers must have an objective and particularized reason for their suspicion.

Whether or not the no-knock order was appropriate the Sixth Circuit, citing the US Supreme Court’s decision in Hudson v. Michigan, declared that failure to comply with the knock-notice requirement does not mandate suppression of the evidence.

Without excluding the evidence as a remedy for entering a residence; without giving knock-notice; does the knock-notice rule have any relevance. Why should police give notice if there is no penalty for the failure to give notice. True in this case, Roberge was sleeping. But if he was awake in his livingroom and heard the police entering, he could have shot shot the police. Apparently the chance of this happening is immaterial to the police because, knowing that Roberge had a gun, they still entered the residence.

Roberge was sentenced to 295 months in prison. Does anyone outside of Tennessee believe that a man should get nearly 25 years in prison for manufacturing methamphetamine for his own use, considering that while he had guns, he did not use them? Sentencing Roberge to 295 month cannot be considered a victory for the War On Drugs. Nor will it decrease the amount of drugs in circulation. But it will cost the government a lot of taxpayer dollars.