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• New Jersey Supreme Court Will Not Hear MS Patient Conviction Case
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• Stay Low Productionz – “Blunted”

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John Ray Wilson and Jim Miller in New Jersey

Some sad news out of New Jersey today. We have been following the case of multiple sclerosis sufferer John Ray Wilson, who was arrested for a few plants in his back yard in 2008.

Wilson said he did not have insurance and could not afford the MS medication to treat his symptoms. Conventional prescription medication to treat MS symptoms run upwards of $3000/month. He said that he was growing the small amount of marijuana to try and treat his condition.

As New Jersey Legislators hammered out a medical marijuana provision in New Jersey, John Ray Wilson was not allowed to say anything about his illness during his trial, or tell the jurors that he used it medically. He was found guilty and the 38-year-old man was sentenced to five years in prison.

He appealed that decision saying that he was entitled to a personal use defense and that he should have been allowed to tell jurors that he has MS. He also was appealing saying that the five year sentence for the amount of cannabis he had in his possession was excessive.

The court ruled in the state’s favor, saying that they couldn’t find abuse or error of judgement by the trial court. His last line of defense was to take his case to the New Jersey Supreme Court. We now have word that they have declined to hear Mr. Wilson’s case and will let the appeal court decision stand.

Mr. Wilson will spend the next five years in prison. Under current New Jersey state law, multiple sclerosis patients can qualify to use cannabis, even the the program has yet to be in operation.  If he were arrested today, John Ray Wilson would at least get to use a medical defense.

External Links:

http://www.nj.com/news/index.ssf/2012/01/nj_supreme_court_wont_hear_cas.html

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1. Montana Judge Rules On States Protection for Providers
2. Virginia Lawmaker Would Like to Look at the Revenue Impact of Legalization
3. Supreme Court rules cops need warrant to put GPS tracking on your car
4. Rhode Island Rep. who mocked marijuana busted again on marijuana charges (UPDATED)

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If you call them "spy satellites" instead of "GPS", requiring a government warrant to use them against private citizens seems more obvious. (Illustration: Garmin.com)

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.

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I got yer stare decisis right here, pal...

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.

The question about owning guns while being a medical marijuana patient will not be addressed by the Highest Court in the Land. A gun-rights case that began in a small Oregon town may have finally reached the end of the line.

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.

External Links:

http://www.dailytidings.com/apps/pbcs.dll/article?AID=/20120110/NEWS/201100311/-1/NEWSMAP

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1. Supreme Court May Look at Florida Dog Sniffing Case
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• Jamaster A – Funky Jump Bee

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Where's the ball? Where's the drugs? Where's the food? I'll do anything to make you happy, master!

A case from Florida asks the question if a police dog’s behavior outside a house gives the officers the right to get a search warrant for illegal drugs inside the home, or is a dogs sniff warrant a constitutional search?

The Florida Supreme court said that the dog’s ability to detect marijuana inside a home from the outside of a closed front door crosses a constitutional line. The Florida state attorney, Pam Bondi, is hoping that the Supreme Court of the United States will overturn that ruling.  Law experts all agree that the Highest Court in the land will, in fact, hear this very important case and make a ruling.

The case is being monitored by law enforcement agencies across the country that use dogs in the search for illegal substances. The dog in question, Franky, is now retired but is responsible for the seizure of more than 2.5 tons of marijuana – and $4.9 million dollars of drug-contaminated money. The chocolate lab spent most of his career in airports.

The US Supreme Court has heard four dog sniffing cases before – two of the previous cases involved the use of drug dogs after a traffic stop, one involved airport luggage, and the other one involved a package in transit. If they argue this case, it will be the first one that includes a dog and a private residence. Again and again, the US Supreme court has ruled that the home is entitled to greater privacy than roads or public places. The Justices ruled in 2001 that police could not use thermal imaging technology to detect marijuana grows from outside the home since the equipment could also detect lawful activity, such as intimate details about when the occupants were bathing. And it is already well established, that officers can knock on your front door, but if you refuse to open up and talk, the officers need a warrant, and to get a warrant they need evidence of a crime.

The case we will be monitoring is called Florida v. Jadines, and led to Joelis Jardines being arrested in 2006 for trafficking after police found 179 marijuana plants in his home when a drug dog marked his front door. His attorney challenged the search saying it was an unconstitutional intrusion into his home by law enforcement. The evidence (the plants) were thrown out in a lower court, then reversed by an appeals court, but then the Florida Supreme Court sided with the original judge. There is a decision conflict with Florida’s highest court since numerous previous rulings decided that a dog’s sniff does NOT a search. The interesting thing here is that unlike the thermal imaging ruling, a dog is not finding out about other legal activity.

External Links:

http://www.washingtonpost.com/national/decided-by-a-nose-court-asked-to-say-whether-drug-dogs-front-door-sniff-is-a-police-search/2012/01/03/gIQABMeJYP_story.html

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