The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

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.

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

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.

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 Delaware Supreme Court upheld drug and driving charges against Brandon Hill.

New Castle County, Delaware Police conducted random vehicle registration searches along Route 273. They stopped Hill and discovered that he had a suspended license, lacked proper registration and proof of insurance. Officer Torres ran Hill’s record. It came back that he may be armed and dangerous. After a back up officer arrived Hill was pat searched. They found $390 in cash ¹ and a number of cell phones. They then requested and received permission to search the vehicle, They ordered a dog to sniff the vehicle. They found two large plastic bags filled with 32 plastic baggies containing crack cocaine and six Oxycodone pills.

On appeal Hill asserted that the police had no reason to detain him after the pat search and that everything seized after the search must be suppressed. But Hill’s counsel failed to raise this issue in the trial court and therefore the appellate court will only reverse the decision if there was plain error. The Supreme Court refused to do so. It found the officers had a reasonable suspicion of criminal activity based upon Hill’s driving without a license, the information that he may be armed and dangerous, ² nervous fidgeting and the finding of the money and the cell phones.

Considering all of these issues the court found that the denial of the search motion was not Hill plain error and it affirmed the conviction.

One exception to the warrant requirement that we have not discussed in this blog permits inventory searches of seized vehicles. When seizing a vehicle police are allowed to inventory the contents of the vehicle in order

“[1] to protect an owner’s property while it is in the custody of the police, [2] to insure against claims of lost, stolen, or vandalized property, and [3] to guard the police from danger.”

The Supreme Court requires that prior to an inventory search the police department must have a policy limiting the discretion of officers performing the search. The policy must take into consideration the underlying purposes of inventory searches and they can not be solely for investigative purposes. They must provide standardized criteria for performing the search in the first place and for determining the scope of the search.

Eric Wayne Mundy was stopped by two Philadelphia police officers for making an illegal turn and for having excessively tinted windows. During the stop the officers discovered that the car was not registered and under Pennsylvania law an unregistered vehicle may be impounded. It must be inventoried prior to towing.

Prior to the inventory search of Mundy’s vehicle the police obtained the keys to the trunk. They searched both the interior of the car and the trunk. In the trunk they found a gray plastic bag containing a closed shoe box. They opened the box and found a brown paper bag containing two baggies with cocaine.

Mundy was charged with possession of over 500 grams of cocaine. He moved to suppress the evidence. The motion was denied. He was convicted and appealed the denial of the motion. He claimed that the Philadelphia Police Department’s inventory search policy gave too much discretion to the police officers in that it did not specifically allow or prohibit the search of closed containers.

The Police Department’s policy stated in part:

[T]he investigating officer[] shall . . . :
1. Have the operator and occupants exit the vehicle and remain on
location . . . .
2. Complete the Towing Report by conducting a vehicle inventory
describing any damage and/or missing equipment, personal
property of value left in the vehicle by the operator/occupants[,]
including the trunk area if accessible.
NOTE: No locked areas, including the trunk area, will be
forced open while conducting an inventory.

The Third Circuit Court of Appeals found that the ban on forced opening of locked areas allows the police to search unlocked containers or those for which they obtain a key. Here the police had a key to the trunk and the items in the trunk were not locked. Therefore the search was legal and the conviction was upheld.

Being a judge does not mean that you are very bright. United States District Court for the Eastern District of Wisconsin Rudolph T. Randa sentenced Jose Figueroa after a drug trial in which he was found guilty of distribution of cocaine and conspiracy to sell cocaine to 235 months in prison. However it was not the sentence that causes Randa to have his IQ questioned. After all, believe it or not, 235 months was the bottom of Figueroa’s guidelines. But it is some of the things Randa said at sentencing that got him criticized by the Seventh Circuit Court of Appeals.

Not only did the judge question Figueroa’s Mexican heritage but he questioned Figueroa’s immigration status, as well as that of his wife and three sisters. He brought up unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog. He told Figueroa that he ought to be happy that he is doing time in an American jail instead of in Mexico or Turkey. He should also be glad, according to Randa, that he is not in Thailand or Malaysia where he could be sentenced to death. He claimed that American have a greater respect for the rule of law than in some other countries including Mexico.

You guessed it. The Seventh Circuit remanded the case for resentencing with a different judge.

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.