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.

Jose Angel Carachuri-Rosendo, a lawful permanent resident, was convicted of two drug related misdemeanors in Texas, First he was convicted of possession of less than two ounces of marijuana and then he plead guilty to possession of one anti-anxiety pill without a prescription.

Normally conviction of a misdemeanor does not result in deportation. But under Federal law and under Texas law a second possessory conviction can be charged as a felony. Narcotics related felonies are considered aggravated felonies and are subject to deportation. Furthermore those convicted of aggravated felonies cannot request discretionary cancellation of removal which allows a judge to determine whether an individual should stay in this country despite he/she being deportable.

The district attorney in Texas had the option of charging Carachuri-Rosendo as a recidivist with a felony. But they did not. None the less, the Federal government moved for deportation because under Federal law he could have been charged as a felon and be deported.

In 2006 the Supreme Court ruled in Lopez v. Gonzales that only those narcotics related crimes that are chargeable under Federal law as felonies subject a person to deportation. In other words, if a person is convicted of a felony in state court but under Federal law it is a misdemeanor the person cannot be deported. For example, if possession of a drug is a felony in some states but can only be charged as a misdemeanor in Federal Court the person cannot be deported.

The Court of Appeal therefore decided that since it could have been a felony if if it had been charged in Federal Court, it should be treated as an aggravated felony. But the Supreme Court found that since he had not been convicted of a felony it was not an aggravated felony. While Carachuri-Rosendo is deportable he is subject to cancellation of removal and the District Court must use its discretion on whether or not he should be deported.

California voters will vote on legalization of marijuana in November. California’s Secretary of State, Debra Bowen, certified the Tax Cannabis Initiative after nearly 700,000 people signed the petition. The petition only needed 434,000 signatures.

California would be the first state in the Union to legalize marijuana and it would still be illegal under Federal law.

A poll last year showed that 56 per cent of Californians supported the legalization of marijuana.

The initiative if passed will allow everyone over 21 years old to possess up to an ounce of marijuana. Individuals would be allowed to cultivate and transport marijuana for personal use. They will be allowed to have a 25 square foot marijuana garden.

Cities would be authorized to regulate and tax the sale of marijuana. If they do not pass ordinances regulating the sale of marijuana possession will be legal in the community but selling it would be illegal. In all cases it will be illegal to sell to minors or to involve minors in the sale of marijuana. It will be illegal to have marijuana on school grounds and smoking it in public will be illegal.

The major arguments in favor of the initiative will be the failure of prohibition and financial. Despite marijuana being illegal and millions of dollars being spent to enforce prohibition a large number of citizens use it. Medical marijuana, which is legal in California, is available primarily to the middle class who can afford going to doctors and getting certified. The truth of the matter is that almost anyone with the money can get medical marijuana but the poor cannot afford going to the doctors who charge significant fees for the certification required under the medical marijuana laws. The poor end up buying it on the street and getting arrested. One problem with the initiative is that it will still outlaw street sales. As a result many of the sellers, who are often poor immigrants or youth will continue to be arrested.

California cities continue to suffer from the recession. The Federal government has cut back on many programs that provide money to the states and California has solved many of its budget problems by cutting back on support to local communities. As a result many communities are looking forward to being able to tax marijuana sales in order to provide services to the public. Legalization of marijuana will allow communities and the state to either cut back or make better use of money currently used to arrest, convict and incarcerate users, sellers and cultivators of marijuana.

But on the other hand many police officers and parents’ groups will continue to oppose legalization. They fear that despite the laws prohibiting possession of marijuana by those under 21 that legalization will make it easier for teenagers to obtain marijuana. Furthermore they are afraid that legalization will lead to more people driving under the influence of marijuana resulting in injuries and accidents.

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.

The Fifth Circuit Court of Appeals found a lack of exigent circumstances to support a warrantless search and reversed Ariel Menchaca-Castruita’s conviction for possession for sale of marijuana

Mr. Menchaca rented a house in McAllen, Texas, In the three month period after he rented the house he did not pay any rent. The landlords decided to make a personal visit to the residence. They knocked on the door and their was no answer. They saw him through a bedroom window and he opened the door to talk to them. He offered to pay the rent but they insisted on coming into the house to see what condition it was in. When they entered they saw a bundle of marijuana. They called the police and Menchaca left the home. Before he drove away Menchaca threatened the landlord with a tire iron but was unable to make contact.

The police arrived and after talking to the landlords they immediately searched the residence. After Menchaca was arrested he made a motion to suppress the evidence on the grounds that the search was committed without a search warrant. The government responded that a search warrant was not necessary. The government claimed that the search was justified by exigent circumstances. The government pointed out that:

(1) the officer was aware that an assault had occurred shortly before his
arrival on the scene; (2) he had reason to believe that there was marijuana inside
the residence; (3) he was unsure whether additional persons were present inside
the residence; (4) he knew from experience that persons who engage in drug
trafficking often carry firearms; and (5) he was concerned for his own safety as
well as the safety of the bystanders

The Fourth Amendment requires that prior to searching a private residence the police get a search warrant. But there are a limited number of exceptions to the rule. One of the exceptions is that the police may search a residence without a search warrant if exigent circumstances exist. Among the factors to be considered in determining whether or not exigent circumstances exist are.

(1) the degree of urgency involved and amount of time necessary to
obtain a warrant;
(2) the reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

The Fifth Circuit found that the government had not provided any evidence that there was any danger to the officers or that the evidence might be destroyed. On the contrary, the evidence indicated that Menchaca had left the residence and that there was no evidence that anyone was still in the building. Furthermore it was on a week day and the officers would have no trouble getting a magistrate to sign a search warrant. In support of the reversal of the trial court ruling that the search was constitutional the appellate court found that;

(1) When Menchaca fled in his truck, he knew that Mrs. Garcia had called the
police, so he could have, and almost certainly would have, alerted any of his
accomplices to flee with him; (2) the officers knew that Mr. Garcia had peered
into the side windows of the house and had seen only Menchaca there; (3) Mrs.
Garcia never mentioned an accomplice, and the testimony at the suppression
hearing at least suggested that Ms. San Miguel might have told the officers that
there were no accomplices inside the house; (4) the front door to the residence
had been left open, indicating a hasty retreat as well as an unsecured premises,
inconsistent with the probability of additional occupants; and (5) there were no
sounds coming from inside the residence to suggest that someone might have
remained behind.

As a result the court found that it was unlikely that anyone else was in the building or that the police were in any danger. As a result it reversed the conviction finding that there were not exigent circumstances supporting the search and that Menchaca’s Fourth Amendment right to be secure in his property had been violated.