Din Celaj ran his own mob in New York City. They specialized in stealing late model automobiles and selling them for parts as well as robbing marijuana from dealers and selling it. The mob met its demise when Celaj sold the automobiles to a garage run by the New York City Police Department. ¹

Celaj was charged under the Hobbs Act. The Hobbs Act makes it a Federal crime to commit robbery or extortion in such a way as to obstruct, delay, or affect interstate commerce. The issue on appeal was whether the evidence at trial was sufficient to show that the theft of the marijuana affected interstate commerce. At trial the parties stipulated that “marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.” ²

The Second Circuit Court of Appeals ruled that the stipulation which is the same as evidence permitted the jury reasonably to conclude that Celaj’s criminal actions had a nexus with interstate commerce” and therefore upheld the conviction. ³

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

The Massachusetts Supreme Court ruled that as a result of decriminalization of marijuana the odor of burnt marijuana emanating from a car does not provide probable cause to search the vehicle or a reasonable suspicion to detain the people in the vehicle. Nor does it provide a basis for officers to order a passenger to exit the vehicle.

Benjamin Cruz was seated in the front passenger seat of a friend’s car. The friend was in the driver’s seat and it was parked illegally in front of a fire hydrant.

Two officers drove up to the vehicle and questioned the driver about parking in front of the hydrant. The driver explained that he was waiting for his uncle who lived nearby. The officers saw the men in the car smoking a cigar known for covering up the smell of marijuana. They got out of the car and smelled a faint odor of burnt marijuana.

The driver appeared “very nervous, had trouble breathing’ and ‘it almost looked like he was panicking.” ¹ The driver admitted to smoking marijuana earlier in the day. The officers saw no contraband or weapons.

The officers ordered backup vehicles and ordered the passengers out of the car. As Cruz exited the vehicle the officers asked him if he had anything on him. He replied, “a little rock for myself” One of the officers retrieved approximately four grams of rock cocaine from Cruz’s pocket and arrested him.

The officers had every right to approach the vehicle parked in front of a fire hydrant. But in order to extend the traffic stop beyond the time necessary to deal with the parking issue there must be specific and articulable facts of criminal activity. Under Massachusetts law possession of under an ounce of marijuana is a civil violation, not a criminal act. Therefore a reasonable suspicion did not exist that a crime had been committed. To order a passenger out of a car during a traffic stop, under Massauchusetts law, one of three reasons must exist:

First, an exit order is justified if “a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” . . . Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver. . . .Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement.

The court found none of these to be applicable. There was no evidence of danger or separate criminal activity and a search can only be for criminal activity, not solely for contraband. ²

The story started out with two former Antioch, California police officers, Norman Wielsch, who was the head of the Central Contra Costa Narcotics Enforcement Team (CNET), and Christopher Butler, who now has a private detective agency, being arrested on drug charges. It was alleged that Wielsch stole drugs from CNET and provided them to Butler who sold them and presumably shared the profits. Twenty-eight felony charges are pending against Wielsch and Butler. Dirty cops–big deal. But as the story has evolved it turns out that Butler represented some women in child custody matters. In order to get custody for their children and to blacken the fathers, he hired decoys to get the men drunk. Then he arranged for a third former Antioch police officer, Stephen Tanabe, now employed by the Contra Costa County Sheriff’s Department and assigned to Daville to be waiting near the bar and to arrest the fathers for driving under the influence. Tanabe has not been charged with incidents involving the DUI’s. Rather he has been charged with drug and weapons offenses.

CNET’s operations have been suspended pending a state audit.

Wielsch, Butler and Tanabe are now out on bail. But at a bail hearing for Butler the district attorney played a video of Butler kidnapping a boy, with Wielsch present, and stealing 4000 Xanax pills found in the boy’s room to scare him from being involved with drugs. In the video Butler and several of his employees impersonated police officers. Deputy district attorney Jun Fernandez said they may be charged with kidnapping. The Xanax was found when officers searched Butler’s possessions after he was arrested.

Paying to have people arrested is about as corrupt as you can get.

Henderson North Carolina Police Detective J. Ragland ¹ saw an SUV with a young man sitting in the driver’s seat, apparently talking to himself. A second young man then sat up in the front passenger seat. Ragland recognized the second young man as David Foster. Ragland had dated Foster’s cousin and had previously arrested him for driving without a license. He knew that Foster had a marijuana related arrest.

He saw Foster’s arms “shifting” and “going haywire.”

Ragland drove across the street and observed the two men. Fifteen minutes passed and nothing happened. During that period Ragland called the head of narcotics and found out that Foster was the subject of an investigation. He also called for a back-up car.

The two cars blocked the SUV. The officers got out and approached the vehicle with guns drawn. Ragland asked the driver for his license. The driver told him it was in his backpack. Ragland performed a pat search and let the driver get his license. Ragland then asked for the registration. Foster opened the glove compartment to get it. Ragland saw a baggie of cocaine in the glove compartment. The gentlemen were arrested.

In case you haven’t figured it out, I will tell you that both the driver and Foster are African American. Studies have shown that African Americans are more likely to be detained, and more likely to be searched than any other racial or ethnic group. While in this case the officers found cocaine, African Americans are less likely to be found in possession of contraband or criminal evidence in Terry searches.

In order to detain someone the stop must be supported “by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” As the Court in Terry v. Ohio said “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The U. S Attorney pointed to three factors in support of the search. First he/she pointed to the officer’s knowledge of Foster’s record. Second, the U. S. Attorney pointed to Foster’s sitting up from a crouched position and finally the shifting of Foster’s arms. The Fourth Circuit Court of Appeals found that these items, neither individually or collectively provided a reasonable suspicion of criminal activity. The crouching and the shifting could be the result of many legitimate activities. The record by itself or with the current investigation do not provide a reasonable suspicion. The reasonable suspicion has to be that the men were involved in criminal activity at the time of the search. Mere knowledge that at sometime in the past they committed a crime will not do.

Therefore the Court reversed the conviction.

A California appellate court denied an appeal based upon a claim that sheriff’s deputies illegally entered the curtilage of a residence to search the property. The curtilage of a property is a somewhat vague property law term referring to “the land immediately surrounding and associated with the home.” That area beyond the curtilage is considered “open fields.”

Like the house itself the curtilage is protected by the Fourth Amendment from unreasonable warrantless searches. The area considered open fields is not protected. Richard Lieng lived in a rural area of Mendocino County, California. On two occasions, without search warrants, Mendocino County sheriff’s deputies drove onto a long private driveway used by Lieng and at least three of his neighbors. Richard and Tony Lieng were convicted of marijuana related offenses as a result of marijuana found as a result of a search warrant of the property. At some point the deputies got out of their vehicle and walked the rest of the way up the driveway. While they could not see into the residence they could smell the odor of growing marijuana, coming from a metal workshop along the driveway.

The appellate court considered four factors in determining whether the deputies violated Lieng’s Fourth Amendment rights by entering the curtilage of the residence. The first factor is “the proximity of the area claimed to be curtilage to the home.” Generally the curtilage is no more than 100 yards from the house. While the evidence showed that at one point the deputies walked up to the shed that was 150 yards from the house, there was no evidence showing how close to the house the deputies.Therefore the court sided with the state on the proximity factor. The second factor is whether the area is enclosed. While there was a gate it was open and there was no fence shutting the area off. The third factor is the use of the land. In this case it was a driveway available to the public. The final factor is efforts taken to protect the area. While on cross examination the deputy was asked about the presence of a no trespassing sign, he did not remember it and there does not appear to have been any direct evidence that it existed. Considering the factors the court found that the deputies did not violate the curtilage.

Several other factors were raised. The deputies used night vision goggles. The court ruled that the goggles were permissible. Unlike a thermal imaging device the goggles do not allow the officers to determine conditions inside the residence which are the heart of Fourth Amendment privacy rights.

Furthermore while the deputies may have been wrong when they stated in the affidavit supporting the search warrant they type of lights they saw in the metal shop and in the garage the error was not material. the defendants argued that there was not probable cause for the search warrant. But the court ruled that the evidence discovered when the deputies were on the driveway provided sufficient evidence to justify the warrant.

What this case shows is a failure of the burden of proof. In a motion to quash a search warrant the defendant has the burden of proof. Here there is no mention of defense witnesses. Such witnesses, for example, could have testified about the presence of a no trespassing sign. If there was a fence around the yards, witnesses could have proved that and the functionality of the gate. On cross examination defense counsel could have pushed the deputies into testifying how close he got to the residence and a defense witness could have testified about the distance.

Of course there could have been strategic reasons for not using defense witnesses. For example they may have been forced to testify about the constant odor of marijuana. But if you are not going to take your best shot at winning the motion, why do it?

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.

Rodney Bynard Johnson was convicted of possession of a firearm by a convicted felon in the District Court for the Western District of Oklahoma and sentenced to fifteen years in prison. He appealed to the Tenth Circuit Court of Appeals claiming that his motion to suppress evidence should have been granted and that his sentence was unreasonable.

Johnson was driving a car late at night with two passengers. He was pulled over by an Oklahoma State Highway Patrol trooper after the officer observed him swerving. He was ordered out of the rental car he was driving and into the police car. According to the officer he immediately smelled marijuana on Johnson’s breath. But according to a video it was nine minutes later before he asked Johnson about the marijuana. The officer left Johnson in the patrol car and got the rental contract out of the car Johnson had been driving. He again smelled marijuana in the car.

The trooper decided to search the vehicle. Along with the marijuana he based the search on the vehicle being from out of state; the lessee or owner of the car was not present; the defendant did not know the actual name of one of his companions ; it was very late at night; the passengers had made unusual movements while the officer had been following the car; and the occupants’ plans were vague. A gun was found on the driver’s seat below a blanket. The Tenth Circuit said that the mere fact that there was an odor of marijuana was enough to search the vehicle.

Johnson challenged the search on appeal by showing incongruities between the officer’s testimony and the video tape as well as between the trial court’s findings and the testimony. But the trial court found the officer’s testimony to be credible and barring a major showing to the contrary the appellate court was bound to accept the trial court’s finding of facts and the facts as being most favorable to the winning side (the government) in the trial court. The important thing to remember from this case is that appellate courts have limited powers. Unless the facts, as found by the trier of fact, are unreasonable the appellate court must accept them as true. A few incongruities or challenges to the witness’ credibility cannot change the duty of the appellate court to accept the facts as found by the trier of the facts ¹.

As far as the sentence, Johnson had three prior convictions for either drug offenses or crimes of violence and the trial court had no choice but to sentence him a minimum of fifteen years under the Armed Career Criminal Act.

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

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