In a rare victory for fans of the Fourth Amendment, the Supreme Court unanimously decided today that the police need to have a search warrant before they can place a GPS device on your car to track your movements, even if your car is parked on public property when the device is attached. The Obama Administration had argued that GPS devices are common tools of law enforcement and not unlike “beepers” that the court had allowed warrantless use of in a 1983 decision called United States v. Knotts. Surprisingly, even though the case in question involved a cocaine trafficker alleged to have moved 97 kilos and $850,000, the justices decided the Obama Administration’s position was wrong.
In this case (decision here) a nightclub owner named Jones was suspected of running cocaine. District of Columbia police ran surveillance on Jones and based on evidence, applied and received a warrant to place a GPS tracking device on Jones’ Jeep Grand Cherokee. The limit on that warrant was to place the device within ten days while the Jeep was parked in DC. Cops, however, placed the GPS on Jones’ Jeep on day 11 and while it was in nearby Maryland, not DC.
At trial, Jones moved to have the GPS data ruled inadmissable. The District Court, in large part, disagreed, ruling:
“‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ” Ibid. (quoting United States v. Knotts, 460 U. S. 276, 281 (1983)).
The Court of Appeals disagreed, saying the warrantless GPS tracking was a 4th Amendment violation. The Supreme Court agreed.
What I found surprising in the unanimous opinion, authored by Justice Scalia of all people, is that the court used the exact logic I used in 2010 when describing a horrible 2010 9th Circuit Court ruling in the case of Oregon’s Juan Pineda-Romero that approved the use of a warrantless GPS device placed on the man’s car while it was parked on his private property. In a fantasy time-machine scenario where I try to explain the 9th Circuit ruling to the Founding Fathers, I wrote:
It’s hard to explain, but imagine that everywhere you went, there was a government clerk going with you, cataloging every location you visit and every route you took to get there and every time of the day you went. Then imagine the government clerk never sleeps and is invisible and you can’t possibly detect him in any way. And that the government can assign that clerk to you without your knowledge and without a court determining that there’s a reasonable chance you’re breaking the law.
So imagine my glee when I read Justice Scalia’s footnote #3:
JUSTICE ALITO’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place inthis case.”… But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements…. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled.
All marijuana law reformers recall the case Raich v. Gonzales. This is the Supreme Court’s decision that invokes the Interstate Commerce Clause to support the federal power to ban medical use of marijuana, even if the states allow it. Angel Raich argued that she was growing California marijuana with California seeds in California soil using California water, California sun, California shovels, pots, and implements, for a single Californian (herself) to use solely for medical (i.e. non-commercial) purposes. There was no “interstate” and there was no “commerce”.
Sadly, the Supreme Court, with the concurrence of Justice Antonin Scalia, disagreed, arguing a precedent from Wickard v. Filburn, a 1940s case where a wheat farmer wished to grow a personal store of wheat over what was then a federal rationing program of wheat for the war. In that case, and in Raich, the Supreme Court considered wheat and marijuana both to be fungible – that is, you can’t tell personal wheat or marijuana from commercial wheat or marijuana, and the mere possibility that the personal stash could hit the interstate market puts regulation of both in federal jurisdiction.
Unfortunately, the uber-conservative Justice Scalia is now being penned in by the precedent of his decision. The Obama Administraion, as part of its health care package, included a mandate that requires people to buy health insurance, with fines as punishment for failure to comply. This is anathema to conservatives, who feel (at least when it’s not marijuana) that the federal government has no right to dictate what people buy and sell.
Talking Points Memo reports that Raich may be the petard by which Justice Scalia has hoisted himself:
[Angel] Raich claimed that Congress could not regulate her cultivation of marijuana for personal use because she was ‘entirely separated from the market. The Court rejected that artificial limit on Congress’s commerce power, because “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,” (Scalia, J., concurring in the judgment). The same principle applies here. Because of human susceptibility to disease and accident, we are all potentially never more than an instant from the ‘point of consumption’ of health care.
The Obama administration claims that the exercise of federal power in Raich is at least as legitimate as the insurance mandate, arguing that letting people remain uninsured undercuts regulation of interstate commerce by passing medical costs onto taxpayers. Georgetown legal scholar and outspoken Affordable Care Act opponent Randy Barnett, who represented the plaintiffs in Raich, fears Scalia may buy into this.
Others believe he’ll find a way to oppose the mandate. Their argument goes that Scalia’s decision in Raich was motivated by a partisan desire to “punch some pot smoking hippies in the face,” and that he won’t hesitate to take a different tack when it comes to the health care reform law.
Adam Serwer noted at the time that Scalia may well have an escape hatch: as Judge Henry Hudson noted in his ruling to strike down the mandate, Raich was about regulating “activity” (i.e. growing marijuana in one’s backyard) while the mandate is about regulating “inactivity” (i.e. not buying health insurance). Invoking this could help Scalia fend off charges of inconsistency.
Cynthia Willis, a resident of the tiny town of Gold Hill, Oregon had been a long-time concealed hand-gun permit owner. In the town of about 1200 residents, Willis, a retired school bus driver, was looking to renew her concealed handgun permit when the sheriff in Jackson County that oversees the permitting found out she was also an Oregon Medical Marijuana Patient. Willis took her battle to court in 2008 over the matter.
Jackson County Sheriff Mike Winters argued that issuing the license would violate federal law, specifically the Gun Control Act of 1968. That act from 44 years ago specifically forbids anyone who uses or is addicted to a controlled substance from having a firearm. The court found that Sheriff Winters had no precedent to deny Ms Willis her renewed gun permit license based on the fact she was a medical marijuana patient. The sheriff took the case to an appellate court, where Willis prevailed again, then Winters took the case all the way to the Oregon Supreme Court. The highest court in Oregon also agreed with the lower courts.
Jackson County’s legal team were arguing that the Gun Control Act of 1968 was on their side, barring people who were considered dangerous or irresponsible and used controlled substances from owning a gun. They also said that a ruling in Cynthia Willis’ favor would force the sheriff to issue concealed weapons permits to people who admitted to using methamphetamine. They said where there is a conflict between state law and federal law, the federal law should prevail.
But the Oregon Supreme Court ruled that issuing gun permits to medical marijuana patients would not violate the federal Gun Control Act based on Oregon’s own concealed handgun licensing laws. The federal law in this case, the 1968 gun control act, only gives the states authority to set their own rules for gun ownership and concealed weapons permits, according to the Oregon Supreme Court. After that ruling, the persistant Jackson County Sheriff, Mike Winters had the county legal team prepare to take the case to the US Supreme Court to ask for clarification of the federal law he still believes outlaws guns in the hands of medical marijuana patients.
This Week, the US Supreme Court decided not to hear the case, along with a similar gun-permit case from Washington County, Oregon. Since the state ruling, Sheriff Winter has had to provide concealed handgun licenses to Willis and other medical marijuana patients as a result of those court rulings.
NORML Legal Committee attorney Lee Berger, well-known activist lawyer in the state, had the case from the lower courts on up that ladder and said he hopes this message from the Supreme Court will force Winters and other sheriffs to respect the rights of medical marijuana patients. The case has cost the tiny county about $50,000 in legal fees.
(Bloomberg Business Week) An Oregon sheriff who lost a state legal battle to deny a concealed handgun license for a medical marijuana patient has decided to take his case to the U.S. Supreme Court.
Jackson County Sheriff Mike Winters has argued that issuing the license would violate federal law, specifically the Gun Control Act of 1968.
That argument was rejected by a trial court, the Oregon Court of Appeals and the Oregon Supreme Court in rulings that say state law on concealed handgun permits does not pre-empt federal law, the Mail Tribune reported Wednesday.
So far, the case has cost the county $13,000 in outside legal fees plus the equivalent of $20,000 in time spent by the county’s internal legal team.
Well, that’s OK, because Oregon governments are rolling in dough. Oh, wait, no, I guess we have a projected $1.7 billion shortfall in the state. Sure, $13,000 is a drop in that bucket, but when you’re dying of thirst, a drop shouldn’t be wasted. For instance, that $13,000 is about how much revenue Jackson County brought in from user fees for recreational trails and about how much the county will spend on a hydraulic truck conveyor attachment to help keep the county airport runways usable in the winter.
Also, consider that Jackson County legal professionals were spending $20,000 worth of time trying to take away 2nd Amendment rights from sick and disabled people. Meanwhile, according to the Jackson County Criminal Justice Fact Sheet, the county had one of the highest crime rates in the state, exceeds the state average in probationers needing supervision, exceeds the 75th percentile in crimes per police officer and cases per prosecutor, and seen a five-year decline in felony conviction rate. Could that time be better spent than on losing the same court case three times?
I’ve reached out to the National Rifle Association on this one. They always seem to get upset whenever the federal government wants to take someone’s guns. Here’s a perfect mix of 2nd Amendment and 10th Amendment that ought to make Charlton Heston* rise from the dead to knock some sense into the sheriff. Who wants to bet that since marijuana is involved, they won’t touch the issue with a ten foot musket?
*Do NOT mess with Zombie Charlton Heston! ”Double tap” won’t work and you can’t pry the gun from his cold dead hands.
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In a case decided yesterday, Kentucky v. King, the US Supreme Court has ruled that cops who smell marijuana coming from your home can break down your door and arrest you, just as long as they knock first and claim to have heard you destroying evidence.
They don’t need a warrant or probable cause, either. Today in America, police can now randomly patrol neighborhoods and apartment complexes sniffing around for pot. When they smell it, they can knock on your door and then break it down, claiming they heard noises from within.
The 4th Amendment to the US Constitution plainly states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Writing for the Supreme Court in a 1980 case called Payton v. New York, Justice Stevens reiterated:
In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
The smell of a burning flower and the sound of “scurrying” are now the “exigent circumstances” needed to “reasonably” cross that “firm line” without a warrant.
(Los Angeles Times) Ruling in a Kentucky case Monday, the justices said that officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel A. Alito Jr. for an 8-1 majority.
In her dissent, Justice Ruth Bader Ginsburg said she feared the ruling gave police an easy way to ignore 4th Amendment protections against unreasonable searches and seizures. She said the amendment’s “core requirement” is that officers have probable cause and a search warrant before they break into a house.
“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?” Ginsburg asked.
The Supreme Court ruled in Kentucky vs. King that the officers’ conduct “was entirely lawful,” and they were justified in breaking in to prevent the destruction of the evidence.
Note to self and advice to others: When you’re smoking pot in your home and the cops come a-knockin’, be very, very quiet. I’m only half-kidding, for as Justice Alito writes:
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U. S. 491, 497-498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.”
If you make noise when the cops knock, police can interpret that as you attempting to hide or destroy evidence (drugs), which creates the “exigent circumstance” needed to break down your door. Which leads me to ask, what does hiding or destroying cannabis sound like? I suppose the sounds of garbage disposals, trash compactors, and flushing toilets would be obvious answers. In King’s case, “scurrying” was enough; I guess cops could argue that he was running to the window throw out a baggie. Of course this all depends on taking the police at their word when they testify that they heard the “scurrying”.
In the King case, the cops weren’t even looking for King. They were conducting a sting operation on a street-level crack dealer. When he ran upstairs to his apartment on the right, the police followed, but they lost him. As they reached the apartment on the right, they smelled marijuana from King’s apartment on the left. The police knocked loudly on the apartment on the left. They then heard “scurrying”, so they broke down the door and caught King with marijuana and cocaine.
The smell of marijuana burning does give police indication there is a crime taking place behind that door – the possession of at least a joint or a bowl of marijuana. In Kentucky, such a first offense would be a crime worthy of a misdemeanor with a max of one year in jail and a $500 fine. It would take more than eight ounces on a first offense for felony charges. The police, not knowing King or having any probable cause to go after King, essential beat down his door on the “exigent circumstance” he may be destroying evidence of a misdemeanor. Is it “reasonable” to violate a man’s 4th Amendment rights over a potential misdemeanor?
With great regret and chagrin to report, CBS has rejected a contract deal with NORML to place a pro-cannabis law reform advertisement on the biggest electronic billboard in Times Square (The CBS ‘Super Screen’ at 42nd St) claiming that the advertisement is too political. NORML had a contract for the 15 second spot below on the giant billboard (and a second one featuring President Obama and New York City’s high cannabis arrest rate with its shocking racial disparity in enforcement).
High Times breaks the story tonight here.
This of course makes no sense to have CBS reject a non-profit organization like NORML’s pro-cannabis law reform advertisement, when, during the Super Bowl on Sunday–the most watched TV event annually in the United States–CBS is scheduled to air a controversial anti-abortion television advertisement produced by the socially conservative non-profit group Focus on the Family (who, like apparently CBS, is anti-cannabis). Last year, CBS rejected an advertisement from the liberal advocacy group MoveOn.org claiming it was too political as well.
The hypocrisy and double standard here is appalling. NORML and MoveOn.org ads are deemed ‘political’ and can’t be purchased and broadcast by CBS, but Focus on the Family can roll a political hand grenade in the form of an anti-abortion TV ad into American households on no less than Super Bowl Sunday for the full and desired effect of creating public discussion.
Worse, beyond the fact that CBS censors political speech, the company has no apparent problems making money off the general public’s strong interest in ‘marijuana’ as the network has established Marijuana Nation, an eye-ball sucking, archive-rich, comprehensive and well done webpage relating to cannabis found on the Internet (Ironically, CBS’ site competes with NORML and High Times’ general content for readers…).
There are numerous reasons why cannabis prohibition has lasted over 72-years, and when huge, mainstream media outlets (who control bill boards, radio and TV, etc…) pick and choose what organization’s free speech they support and those they don’t–recognizing that absent a vibrant and informed public discussion about needed public policy changes, like ending cannabis prohibition, those needed public policy changes take so much longer than they would organically absent the filter of mainstream, corporate-leaning mega media outlets.
Personally, I can only wonder what public discourse, with now even more corporate influence, is going to look like in America post the SCOTUS decision two weeks ago in Citizens United vs. Federal Election Commission.
[Russ adds: Read more on the refusal of mainstream media to give the same voice to marijuana law reform as they do profit-making marijuana-themed movies and TV at NBC, CBS, ABC, & FOX happy to profit from marijuana, as long as nobody talks about legalizing it.]
WASHINGTON (CNN) — A former middle-school student who was strip-searched by school officials looking for ibuprofen pain medication won a partial victory of her Supreme Court appeal Thursday in a case testing the discretion of officials to ensure classroom safety.
Redding was an eighth-grade honor student in 2003, with no history of disciplinary problems at Safford Middle School, about 127 miles from Tucson, Arizona.
During an investigation into pills found at the school, a student told the vice principal that Redding had given her prescription-strength 400-milligram ibuprofen pills.
The school had a near-zero-tolerance policy for all prescription and over-the-counter medication, including the ibuprofen, without prior written permission.
Redding was pulled from class by Vice Principal Kerry Wilson, escorted to an office and confronted with the evidence. The girl denied the accusations.
A search of Redding’s backpack found nothing. A strip search was conducted by Wilson’s assistant and a school nurse, both females.
Redding was ordered to strip to her underwear and to pull on the elastic of the underwear, so any hidden pills might fall out, according to court records. No drugs were found.
“The strip search was the most humiliating experience I have ever had,” Redding said in an affidavit. “I held my head down so that they could not see that I was about to cry.”
The decision was 8-1. Justice Clarence Thomas thought the Constitution doesn’t really cover the “preservation of order, discipline and safety in public schools”, so if you want to strip-search 13-year-old girls at school, the Founding Fathers would have been cool with that. Justices Ruth Bader Ginsburg and John Paul Stevens thought the girl should be able to sue the school administrators who humiliated her, but the rest of the court decided that up til now it hasn’t been very clear how much protection the Constitution gives 13-year-old schoolgirls from strip searches, so the administrators couldn’t be reasonably expected to know they couldn’t just do that (if I’m reading SCOTUSblog’s analysis correctly).
So, from now on, there will be more protection for 13-year-old girls in school to not be expected to strip to their panties for school officials – not police, a freakin’ vice principal’s assistant and a school nurse! - when a teenage snitch lies about them holding drugs. But all you 13-year-old girls who were strip-searched, you have no recourse.
I don’t suppose anybody ever considered just calling the girls’ parents. ”Hello, Mrs. Redding? We have a tip your daughter may be holding prescription ibuprofen in violation of our zero-tolerance policy. Can you come down to the school, please?” No, wait, excuse me, I forgot, we’re talking about drugs; there’s no room for common sense here! What am I thinking? I just expected someone who takes seriously the phrase “zero tolerance” to show common sense.
Download audio file (NORML_Daily_AudioStash_2008-12-02.mp3)
I’ve been tinkering a bit with the Polls feature. Now the poll on the right sidebar will be randomly selected when you hit the Stash website. Here is the latest poll:Note: There is a poll embedded within this post, please visit the site to participate in this post's poll.
Don’t forget to watch “Marijuana Nation” on the National Geographic Channel tonight at 10pm Eastern. And if you’re up early tomorrow, catch me on Albuquerque’s 94Rock FM at 8:30am Mountain (online at 94Rock.com).
On today’s Stash California NORML coordinator Dale Gieringer drops by to discuss the ramifications of the Supreme Court’s refusal to hear the Kha case involving police refusal to return medical marijuana to a patient.
Then we have more audio from NORML CON 2008, featuring Dr. Carl Hart and his presentation on Marijuana and Health.