Privacy

No Warrant Needed for Illinois Drug Audio Recordings [FEATURE]

by , August 20, 2012, 08:20pm, (Issue #747)

special to Drug War Chronicle by Clarence Walker, cwalkerinvestigate@gmail.com

No warrant needed for listening in on drug suspects (wikimedia.org)

In Illinois, the war on drugs has delivered yet another blow to citizens' privacy rights. In the Land of Lincoln, it is illegal for citizens to record or videotape Illinois police in public, yet the Illinois legislature last month gave police the right to engage in those very same activities -- without a warrant -- during drug investigations.

On July 24, citing police safety and the need for quicker drug arrests, Gov. Pat Quinn (D) signed into law House Bill 4081, which exempts police doing drug investigations from the provisions of the state's eavesdropping law. It also allows them to audio or videotape drug suspects without having to get a warrant.

Under the bill, sponsored by state Reps. Jehan Gordon (D-Peoria) and William Haine (D-Alton), the normal requirement of a warrant based on probable cause is replaced by the lower and constitutionally-suspect requirement of only reasonable cause. In a further victory for the imperatives of the drug law enforcement, police will be able to bypass judicial scrutiny of their need to record someone and instead will merely have to obtain prior approval from a prosecutor to listen in on suspected drug conversations.

"The world of illicit drugs moves very quickly," explained Terry Lemming, an Illinois State Police commander, during a May hearing on the bill. "It's very difficult to find a judge in the middle of the night. I didn't see the sense in spending all these hours drafting a court order when I could have already gone out and arrested a guy selling on the corner -- and that's the feeling of many narcotic officers."

Riverside, Illinois, Police Chief Tom Weitzel told the Chronicle the new law was desperately needed. Weitzel is a member of the Illinois Association of Chiefs of Police, who, along with his comrades, fought for 14 years to get the law passed.

"The law is critical to undercover narcotic officers for several reasons," he wrote in an email. "First, it's an officer safety issue because many times backup teams are blocks away when drug transactions either take place in cars, within homes or apartments, or just on the streets."

Weitzel even went as far as to say the law would benefit defendants, too.

"The legislation will help secure better evidence for prosecutors and protect suspects from police misconduct, including the fact the same audio recordings made by police can be used by defendants who claim entrapment," he argued.

But while the bill is now law, not everyone is happy about it. Rumblings of discontent have been heard from civil rights advocates, legal experts, and opposing lawmakers.

State Sen. Dan Kotowski (D-Park Ridge) argued during hearings on the bill that if judicial responsiveness is a problem for police, then the fix would be to make judges more available for warrant requests -- not to take them out of the loop.

"I'm struggling with taking away where you'd go to get a judge's approval to have a wiretap," he said.

Under the new law, judges are not completely frozen out of the process, but their role is limited to determining whether evidence gained from a wiretap can be admitted at trial.

"I understand the desire to enhance law enforcement tools to deal with crime, and I am certainly on the side of law enforcement, but it's a very slippery slope we go down when we start removing safeguards that has historically exist to make sure certain tools not be used inappropriately," state Sen. Kwame Raoul (D-Chicago) told the Chicago Tribune.

State Sen. Michael Nolan (D-Elgin) also weighed in on the matter. Nolan's dissatisfaction with the bill is the fact the new law deals with reasonable cause as the standard for having private conversations recorded, as opposed to probable cause, which is the standard bearer for the integrity of the law.

"This legislation does not base that determination of admissibility on 'probable cause,'" he said. "This is basically upending the Fourth Amendment."

http://stopthedrugwar.com/files/ed-yohnka-200px.jpg

ACLU of Illinois' Ed Yohnka

The ACLU of Illinois had a similar reading. Its spokesman, director of communications and public policy Ed Yohnka, told the Chronicle the new law was not only constitutionally suspect but also unnecessary.

"In all the years that Illinois law enforcement worked for this change, they never been able to point to a particular need for this new power. In many years, we have seen drug related arrests in Illinois rise over a yearly period without this new authority -- which begs the question: is this power really necessary?" he asked.

"The legislature should have left things alone because judges act as a neutral third party and they can already act fast enough," Yohnka continued. "Our personal conversations are the most intimate we have and government should make certain it is necessary to intrude before engaging in eavesdropping."

For Yohnka, the new law doesn't pass the smell test. He noted that current law already allows police to wiretap or do audio recording in an emergency and suggested the real intent is to allow police to more easily listen in on targets not directly involved with drug trafficking, targets merely associated with a prime suspect.

"The current law permits an officer to conduct warrantless wiretapping or audio-recording if police or citizens were in imminent danger," Yohnka said. "The creation of this new authority suggests this is not about protecting police officers."

What makes the new law all the more galling to some is that police, who can now wiretap drug suspects without a warrant, have a habit of arresting members of the public who do the same thing to them. Under current Illinois eavesdropping law, citizens have the right to video a police officer making a public arrest, but a person cannot record an audio of police without permission.

That law is now under review by the state's appellate courts in a case arising from the 2009 arrest of self-employed artist Christopher Drew. When police arrested him for selling art on the street without a proper permit, they discovered him recording the encounter. They then charged him with felony eavesdropping for recording them without their permission.

Drew went public and fought to have the law declared illegal and earlier this year he won a partial victory when Circuit Court Judge Stanley Sacks declared it unconstitutional. Sacks ruled that the law criminalized innocent conduct and violated due process. But state prosecutors appealed the ruling and vowed to keep it on the books.

One standard for police, another for citizens. Police can record private conversations without a warrant, but citizens face years in prison if they record police in the line of duty -- at least until the Illinois courts definitively rule that portion of the eavesdropping law unconstitutional. Meanwhile, look for legal challenges to the new law allowing police to bypass judges and the warrant process in their never-ending war on drugs.

United States

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Redefining the English Language to Fight the Drug War

by Scott Morgan, August 14, 2012, 12:54am

http://www.stopthedrugwar.org/files/scalesofjustice.jpg

The tendency of the courts to trash our privacy rights in a pathetic attempt to prevent marijuana smoking is so routine that I seldom bother even to point it out anymore, but something about this case bugged me just enough to slap it around for a second.

FAIRBANKS, Alaska -- The federal government can obtain suspected marijuana growers' utility records without a warrant.
The 9th Circuit Court of Appeals on Tuesday ruled in the case of a Fairbanks utility, Golden Valley Electric Association, which refused turning over records to the U.S. Drug Enforcement Administration.
…
GVEA argued the Fourth Amendment protects customers from search and seizure without a proper warrant.
But the appeals court ruled a customer lacks an expectation of privacy in an item, like a business record. [SacBee.com]

Doesn't that just sound silly? In fairness, I've studied enough law to know that the legal definition of a term like "expectation of privacy" is always slowly evolving and doesn't necessarily mean what a random person would think it to mean. But come the hell on. Once we reach point where they're telling us with a straight face that we have no "expectation of privacy" with regards to our business records, well, that's just too stupid for school.

Unfortunately, it's really rather consistent with how the courts treat our privacy rights, and the decision of how much privacy we can reasonably expect is not ours to make. Courts have consistently ruled, for example, that information you share with a third party carries no expectation of privacy because you're assuming the risk that someone will turn that information over to the government. I disagree.

Rather obviously, we wouldn't have to worry about the government obtaining our information from third parties if the government hadn't granted itself the authority to collect said information and then introduce it as evidence against us in court. I wouldn't have to worry about third parties carelessly disclosing my private information if such information were legally inadmissible as it ought to be.

When I hear the term "expectation of privacy" I think of the physical boundaries that separate public from private. I don't expect privacy with regards to my purchases at the grocery store, or the content of a conversation on a crowded street. It's well understood that any crime committed in "plain view" is fair game for police, even if they have to use binoculars to get a good view. I even sort of sympathize with allowing police to search your trash, since you left it outside where anyone could walk off with it.

But anyone can't just walk off with my utility bills. Stealing mail is a crime, after all. To say that I have no expectation of privacy with regards to that information is preposterous. Yes, the utility company could give my information to the police, but so could a neighbor who steals my mail. Either way, I'm getting screwed by somebody and it's not my fault for expecting privacy.

Expulsion of Olympic Athlete for Marijuana Raises Questions

by Phillip Smith, August 06, 2012, 05:23pm, (Issue #746)

An American Olympic judo contender, Nick Delpopolo, was expelled from the London 2012 Olympic Games Monday after he tested positive for marijuana, and that has some experts raising questions about whether it makes sense to include marijuana on the World Anti-Doping Agency's (WADA) list of banned substances.

Judo match, 2012 Olympics, London (Martin Duggan via Flickr and Wikimedia)

Delpopolo said he had inadvertently consumed marijuana in a food item he did not know contained it.

Concerns about athletes "cheating" by using performance enhancing drugs is one thing, but the use of recreational drugs that do not enhance -- and could well detract from -- competitive performance is another. Recreational drugs are banned not because they might provide an athlete with an unfair advantage, but because their use by athletes can cause public relations problems for organized sports, which like to tout athletes as role models for youth.

But some experts told Reuters Monday that sports' PR concerns were no reason to ban athletes for using marijuana. They also suggested the time, expense, and effort of drug testing athletes might be better spent going after real cheats who do blood doping with EPO or use anabolic steroids to increase muscle growth and testosterone levels.

"There's no evidence cannabis is ever performance enhancing in sport, and since its use is legal in a number of countries, there's no reason for it to be banned by WADA," said David Nutt, a professor of neuropsychopharmacology at Imperial College London. "I can't think of any sport in which it would be an advantage. And it seems ludicrous that someone could quite legally smoke cannabis in Amsterdam in the morning and then come over to London in the afternoon and be banned from competing."

But marijuana is banned by WADA, and that means athletes caught using it during a competition face a two-year ban. Still, unlike performance enhancing drugs, WADA does not punish athletes who test positive for pot outside of competitions. That stance has led some scientists to suggest that WADA's reason for banning marijuana is political, not scientific.

"The problem is the elite athletes should be seen as role models for young kids, and so they ban cannabis because they don't want to have the image of gold medalists smoking joints," said one British-based sports scientist who asked not to be identified because of the sensitivity of the issue.

[Ed: If officials don't link images of athletes smoking marijuana, they might have a poor strategy -- no one knew Delpolo used it, before he was sanctioned, but now everyone does.]

"It's hard to imagine how smoking a joint or eating marijuana brownies is going to help somebody in judo," said Michael Joyner, a member of the Physiological Society and a researcher at the Mayo Clinic in Minnesota in the United States. "My advice to WADA is that they should focus on drugs that are clearly performance enhancing in the sports where they are clearly performance enhancing."

According to WADA, substance merit inclusion on its banned substances list if they meet two of these three criteria: they are proven to be performance enhancing, they are dangerous to the health of athletes, or they are contrary to the spirit of sport. There is little or no evidence that marijuana can enhance sporting performance, while there is evidence it could have a negative impact. It can slow reaction times, cause coordination problems, and reduce hand-eye coordination, none of which is going to increase an athlete's chances of victory.

While marijuana is not harm free, there is little evidence it is dangerous to the health of athletes. Nor is it clear why marijuana use would be "contrary to the spirit of sport."

WADA isn't keen to clarify. It refused to comment Monday on a Reuters query about why marijuana is banned.

London

United Kingdom

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Narc Scandal Front and Center in Florida Sheriff Race [FEATURE]

by Phillip Smith, July 11, 2012, 03:26pm, (Issue #742)

Scandal has been brewing in the Pinellas County, Florida, Sheriff's Office over the possibly criminal misbehavior of some of its narcotics detectives, and Sheriff Bob Gualtieri, a Republican, has been trying to keep it from spinning out of control. But with his job on the line in November, his challengers, Republicans and Democrats alike, are making the scandal -- and the department's emphasis on busting marijuana grows -- issues with which to wound him in the campaign.

Narcotics deputies went above and beyond in their efforts to bust indoor marijuana grows (wikimedia.org)

Pinellas County sits on Florida's Gulf Coast and includes the city of St. Petersburg. For the last few years, it has been an epicenter of the state's prescription opioid epidemic, but despite the county leading the state in Oxycontin overdose deaths, some Pinellas County narcs were more interested in pot growers than pill mill merchants.[Editor's Note: At least one candidate for sheriff is challenging the conventional law enforcement narrative regarding opioid pain medications; see Scott Swope's comments on the topic at the end of this article.]

It all began when narcotics detectives with the sheriff's office hit on the bright idea of spying on a legal business -- a Largo hydroponics grow shop -- and taking down the license plate numbers of customers, and then snooping around to see what they could find. At least four detectives were involved in surveillance that apparently crossed the line into illegality by trespassing on private property without a warrant, by disguising themselves as utility company workers, and by subsequently falsifying search warrant affidavits (they would claim to have smelled marijuana from the street, when they had actually trespassed to find evidence).

They would have gotten away with it if not for tenacious defense attorneys. But things began to unravel last year, when the attorney for Allen Underwood, who had been arrested in a grow-op bust, filed a complaint saying that Underwood's surveillance cameras had recorded one of the detectives hopping over his fence. The detective ordered the surveillance video deleted, and the sheriff's office found no evidence of wrongdoing by its man.

Next, Largo defense attorney John Trevena charged in a case that one of the detectives had donned a Progress Energy shirt and cap to gain warrantless access to a private property. The detective first denied it under oath, then admitted it. At the time, Gualtieri attributed the deception to "over-exuberance" by a young detective.

Then, in February, Tarpon Springs attorney Newt Hudson questioned one of the detectives under oath about whether he ever saw his dope squad colleagues trespass. Under questioning, the detective admitted that he and one of the other detectives had once broken down a fence to enter a yard of interest.

"That was the game changer," Sheriff Gualtieri told the Tampa Bay Times last month as he announced he was launching a criminal investigation of the four detectives. "Misconduct will not be tolerated and we will hold accountable any member of the Pinellas County Sheriff's Office who acts contrary to the law," Gualtieri said. "The ends never justify the means."

Embattled Sheriff Bob Gualtieri (bobforsheriff.com)

Three of the detectives have resigned, and Gualtieri fired the fourth, but it might be too late to undo the damage to local law enforcement and to Gualtieri's own political prospects. At least 18 pending marijuana grow prosecutions have been halted, and Gualtieri and Chief Assistant State Attorney Bruce Bartlett said they also will review charges against about two dozen other defendants who previously pleaded guilty, were convicted or accepted plea bargains.

And Gualtieri has been repeatedly pummeled by challengers over the scandal. Not only the sole Democrat in the race, Palm Harbor attorney Scott Swope, but Gualtieri's Republican challengers, most notably former Sheriff Everett Rice, have criticized his handling of the affair. The Republican primary, which Gualtieri hopes to survive, is set for August 14.

"They shouldn't have been investigating the store to begin with," Swope told the Chronicle. "As far as criminal activity is concerned, we have bigger fish to fry than trying to catch people who are purchasing grow lamps. It was absolutely ridiculous."

Especially given that the sheriff's office had had to cut $100 million from its budget and eliminate 600 positions, including the cold case unit and sexual predator tracking, Swope said, alluding to the severe financial straits in which the department and the county found themselves.

"When I'm at a campaign presentation and tell people that they had detectives for surveilling this business selling legal equipment, but not for human trafficking or cold cases, everyone hears that and goes 'wow,'" Swope said. "It's an argument that has some traction."

Swope also criticized the leisurely pace of Gualtieri's internal investigation.

"The internal investigation took way too long," said Swope. "When you have an assertion that one of your detectives is trespassing to obtain evidence, falsifying ID to obtain evidence, falsifying affidavits, then destroying evidence, that needs to take precedence over every other internal investigation, and it didn't. When Gualtieri first went on the record, he said he didn't believe it; he just dismissed it, at least initially."

For Rice, who served as sheriff for 16 years until 2004, the pot grow scandal was an indication of misplaced priorities in Gualtieri's department.

"How is it that Pinellas and Pasco County became the pill-mill capital of the world in the last three or four years," Rice asked at a candidates' forum this spring, "and meanwhile we're spying on people who have hydroponic materials?"

Rice was still on the attack last month, telling the Tampa Bay Times that problems in the department are not limited to the pot grow scandal, but also include reports of slipshod internal investigations, narcotics sergeants claiming pay while monitoring detectives from home, and possible thefts.

"The question is,'' said Rice, "how did that culture come about in the first place? I think people realize that a Sheriff Rice wouldn't put up with such things,'' Rice said.

Except that he did. During his time in office, one of Rice's narcotics detectives gathered evidence of a pot grow illegally and lied about it under oath. He also fabricated evidence for a search warrant by calling in his own "anonymous tip." In another case, deputies used an informant to get a search warrant without revealing that the informant's wife was having an affair with the suspect. Pinellas judges tossed a number of pot grow cases over police misconduct during Rice's reign, and one detective was prosecuted for perjury.

One of the cases tossed was against Randy Heine, a Pinellas Park smoke shop owner. In that 1997 bust, deputies raided Heine's home and seized two pounds of pot, but a judge threw out the case, finding that deputies had resorted to "gross, material misrepresentation of the facts'' in their search warrant application.

Heine, a perennial gadfly on the local scene, has also become a harsh critic of Pinellas-style drug law enforcement. He was briefly a candidate in the sheriff's face before dropping out after failing to pay a filing fee. That leaves Swope, Gualtieri, and Rice.

Democratic challenger Scott Swope (swopeforsheriff.com)

For Swope, Gualtieri and Rice are birds of a feather -- traditional lawmen who don't think twice about the futility and expense of continuing to fight the war on marijuana. He offers a different vision, one that includes marijuana decriminalization and, eventually, legalization and regulation.

"Florida should go the way of more than a dozen other states and decriminalize," he said. "Then the sheriff's office wouldn’t have to expend limited resources trying to catch people in possession of small amounts. That would make it so those young people don't have a criminal record, they're still eligible for student loans, they can get jobs. It's a bit of a shocker for some of my audiences, but when you think about it, it makes perfect sense to save tax dollars by not investigating and prosecuting possession of small amounts."

A marijuana bust of 20 grams or less is a misdemeanor in Florida, but it means a trip to jail, booking, and waiting to get bonded out. It also uses up law enforcement man-hours during arrest, booking, detention, and prosecution. Florida should and will decriminalize eventually, Swope said, but he wouldn't wait for the legislature to act if elected.

"As sheriff, I can't tell the legislature what to do, but I would have some influence over the county commission. I could lobby them to enact an ordinance making possession of less than 20 grams an ordinance violation," he explained. "That way, instead of deputies having to arrest people and put them in the criminal justice system, they could just issue an ordinance violation ticket, and the fines would go to Pinellas County.

Swope was philosophically open to legal, regulated marijuana sales, but wasn't pushing it as a campaign position. First things first, he said.

"From the perspective of this campaign, the majority of the population believes medical marijuana should be legal, and I do, too," he explained. "Decriminalization and regulation similar to alcohol and cigarettes, well, that's a bit more of a progressive position. I think it's going to be a two-step process: Make medical marijuana legal, and after enough time, and people realize these folks aren't committing crimes, then it's time for step two."

Swope also had an interesting perspective on the pain pill and pill mill issue.

"Pinellas County had a very serious problem with pain pills, we led the state four straight years in Oxycontin deaths, and it's still a serious problem, but unfortunately, when they really ramp up the pain pill mill enforcement, the pendulum can swing too far the other way," he noted. "There is a potentially serious negative impact on doctors and pharmacies trying to help people who need the help. If Florida were a little more progressive and had a medical marijuana law, perhaps many could treat themselves with that instead of narcotics."

The one-time deputy's drug war positions are winning him support outside of traditional Democratic constituencies, including Libertarian Party figures ranging from county stalwarts to presidential nominee Gary Johnson.

"I have the endorsement of the Libertarian Party here, and that has some of the Democrats scratching their heads. I just explain that I'm a lawyer familiar with the Constitution, I'm progressive-thinking and understand and appreciate the value of personal liberty and what the Constitution means and I will make damned sure the sheriff's office abides by the Constitution."

Pinellas County has 3,000 more registered Democrats than Republicans, but most county offices, including the sheriff's, have been in Republican hands for decades. A victory for Democratic challenger Scott Swope in November would not only break the GOP's stranglehold on elected office in Pinellas, it could also bring a fresh new perspective to Florida law enforcement.

Meanwhile, Sheriff Gualtieri has just unleashed an offensive against "fake pot."

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

St. Petersburg, FL

United States

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Georgia Governor Puts Welfare Drug Testing on Hold

by Phillip Smith, July 05, 2012, 04:34pm, (Issue #742)

Georgia's new welfare drug testing law was supposed to go into effect July 1, but that didn't happen. According to a spokesman for Gov. Nathan Deal (R), the governor still supports the law, but will hold off on implementation until a legal challenge against a similar bill next door in Florida is resolved.

The Florida law took effect last July, but was blocked by a federal judge in October. That case is expected to go before the 11th US Circuit Court of Appeals.

Civil rights and civil liberties groups in Georgia said when the law was passed they would challenge it as soon as it is implemented. But they may not have to if the court, which has jurisdiction in Alabama, Florida, and Georgia, strikes down the Florida law.

The federal courts have generally taken a dim view of random, suspicionless drug testing. They consider drug testing a search under the meaning of the Fourth Amendment and have carved out only limited exceptions to the general prohibition against warrantless drug testing. Those exceptions include public safety-sensitive positions (airline pilots, truck drivers), law enforcement personnel engaged in anti-drug work, and high school students involved in athletics or extracurricular activities.

"The governor feels confident that the law in Florida, and therefore in Georgia, will be upheld," spokesman Brian Robinson told the Associated Press. "We plan to move forward on this as soon as we can, but we're willing to wait a little bit longer on the federal courts. There's just no need in us hopping in."

Under the Georgia law, the state Department of Human Services is mandated to create a drug testing program for welfare applicants at their own expense. Those who pass the test would be reimbursed, but those who don't would not only not be reimbursed, they would be ineligible to receive benefits for one month. A second positive test would result in a three-month ban, while a third positive test would result in one year of ineligibility.

Any applicant who fails a drug test must first pass another drug test before benefits would be reinstated. The department would have to provide people who fail the drug test with a list of drug treatment providers, but the state would not pay for drug treatment for them.

Sen. Vincent Fort (D-Atlanta) told the AP Deal should have voiced his concerns about the law when it was being debated.

"During the debate, we talked about the viability of the law based on the Florida case," said Fort, who opposed the measure and was among the parties vowing legal action against the law. "It would've been appropriate for him at that time to have injected that point, but he's waiting until after he signed it, until it's about to be implemented. He chose not to say anything about it."

Ford said that if the law is upheld, it would set a dangerous precedent.

"The question is, if you're poor and need assistance, do you forfeit your constitutional rights or not?" he said. "I think that's dangerous. If it's poor people today, it could be other people tomorrow."

Atlanta, GA

United States

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Nevada Drug Dog Troopers Allege Official Misconduct

by Phillip Smith, June 29, 2012, 05:58pm, (Issue #741)

A group of Nevada Highway Patrol troopers and a retired police sergeant have filed a lawsuit against the Patrol and the Las Vegas Metro Police charging them with racketeering and corruption. The charges center on the department's training and use of drug-sniffing dogs.

Drug sniffing dogs can be trained to alert on cue. (US Navy)

The troopers' complaint opens a most unflattering window on personal bickering, bureaucratic infighting, and unethical behavior among state law enforcement officials, as well as alleging unconstitutional policing practices, including unlawful searches and seizures and training drug dogs to learn "cues" about when to signal they have found drugs.

The complaint centers on what the troopers say was the intentional effort of Nevada Highway Patrol Commander Chris Perry to undermine the drug dog program after it was approved by then Gov. Jim Gibbons and retaliation against drug dog-handling troopers by Perry and his underlings.

But it reveals patterns of racial profiling, unconstitutional searches and seizures, and enforcement driven by hopes of asset forfeiture (which, incidentally, funded the entire drug dog program). The suing troopers allege that other troopers and Las Vegas Metro Police narcotics officers would illegally poke and open packages at a Fedex processing center to make it easier for drug dogs to hit on them.

Equally seriously, the complaint alleges that some drug dogs were intentionally trained to provide false alerts that they had detected drugs by responding to cues from their handlers. Using a false drug dog alert as the basis for initiating a search is illegal.

The complaint accuses Perry and his underlings of violating the Racketeer Influence and Corrupt Organizaion (RICO) act by conspiring to use the improperly trained drug dogs to systematically conduct illegal searches and seizures for financial benefit.

None of the individuals or law enforcement organizations named in the lawsuit have yet publicly responded.

Las Vegas, NV

United States

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NYPD Sued Over Stop and Frisk Marijuana Arrests

by Phillip Smith, June 25, 2012, 05:03pm, (Issue #740)

The Legal Aid Society in New York City announced last Friday that it had filed a lawsuit against the NYPD over its continuing practice of making misdemeanor marijuana possession arrests when they order suspects to empty their pockets during the department's controversial stop and frisk searches. Police Commissioner Raymond issued a memorandum last fall directing police not to make the arrests, but only to ticket pot possession offenders, but police continue to charge people with misdemeanors, according to the lawsuit.

"It's certainly a sad commentary that the commissioner can issue a directive that reads well on paper but on the street corners of the city doesn't exist," said Legal Aid's chief lawyer, Steven Banks.

Under New York state law, marijuana possession is decriminalized, but public possession remains a misdemeanor. In New York City, police order suspects to empty their pockets, then charge them with public possession if a baggie appears.

A call to modify the state's decriminalization law to include public possession as only a ticketable offense won broad support, including from Gov. Andrew Cuomo (D) and Mayor Michael Bloomberg (R), but was killed last week by Senate Republicans.

The lawsuit, filed in State Supreme Court in Manhattan, seeks a court order against the city and the NYPD declaring the practice illegal under state law and barring officers from making such arrests.

The Legal Aid Society filed the suit on behalf of five New Yorkers, all of whom were arrested since mid-April on misdemeanor possession charges after small amounts of pot were found on them during police stops. In each case, the marijuana became visible only after officers searched the men or asked them to empty their pockets.

"These five individuals are New Yorkers who were essentially victimized by unlawful police practices," Banks said. "The lawsuit is aimed at stopping a pernicious police practice, which is harming thousands of New Yorkers a year and clogging up the court system with one out of seven criminal cases and diverting resources and attention from more serious criminal matters."

One plaintiff, Juan Gomez-Garcia, said he was waiting for a food order outside a Kennedy Fried Chicken restaurant in the Bronx on May 16 when an officer approached, began to question him and asked if he had any drugs on him. Mr. Gomez-Garcia, 27, said that after he admitted to the officer that he had marijuana in his pocket, the officer reached inside the pocket and removed a plastic bag containing a small amount of the drug.

He was arrested and charged with "open to public view" possession for having marijuana "in his right hand." He spent about 12 hours in a jail cell and was let go after he pleaded guilty to a disorderly conduct violation, according to the lawsuit.

Because of the NYPD's massive stop-and-frisk program -- aimed overwhelmingly at young people of color -- and because of the department's willful misinterpretation of the law and refusal to follow Commissioner Kelly's directive, New York City is the nation's marijuana arrest capital. Around 50,000 people a year are charged with misdemeanor pot possession.

According to the Legal Aid Society, NYPD continues to arrest people for pot possession at about the same pace as ever. While arrests dipped below 3,000 in December, by March, the number of arrests had risen to 4,186, a number almost identical to the 4,189 arrests made last August, before Kelly issued his directive.

New York, NY

United States

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Did You Know? Impairment Potential for Different Kinds of Drugs, on DrugWarFacts.org

by David Borden, June 19, 2012, 02:12pm, (Issue #739)

Different kinds of drugs affect people differently, but the details often get lost in debate. Read about the specific kinds of impact that different classes of drugs can have on people, including for driving and other safety-sensitive activities, in the Drug Testing -- Impairment section of DrugWarFacts.org.

DrugWarFacts.org, a publication of Common Sense for Drug Policy (CSDP), is an in-depth compilation of key facts, stats and quotes on the full range of drug policy issues, excerpted from expert publications on the subjects. The Chronicle is running a series of info items from DrugWarFacts.org over the next several weeks, and we encourage you to check it out.

Follow Drug War Chronicle for more important facts from DrugWarFacts.org over the next several weeks, or sign up for the DWF new facts RSS feed.
Read last week's Chronicle DrugWarFacts.org blurb here.
Common Sense for Drug Policy is a nonprofit 501(c)(3) organization dedicated to reforming drug policy and expanding harm reduction. CSDP disseminates factual information and comments on existing laws, policies and practices.

Federal Appeals Court Rejects Job Corps Worker Drug Tests

by Phillip Smith, June 11, 2012, 04:34pm, (Issue #738)

A federal appeals court ruled last Friday that a random, suspicionless drug testing program for workers at Job Corps centers is unconstitutional. In a 2-1 decision, the US Circuit Court of Appeals for the District of Columbia held that the US Forest Service, which operates those Job Corps camps, did not demonstrate that drug use among staff or clients was such as problem that it qualified as an exception to the Fourth Amendment's proscription against unreasonable searches and seizures.

drug testing lab

The federal courts have held that drug tests are a search under the Fourth Amendment and have crafted only narrow exceptions to the rule, including testing of truck drivers and airplane pilots, police involved in narcotics work, and school students involved in sports or extracurricular activities.

The Job Corps program operates 28 centers for at-risk youth between the ages of 16 and 24. Clients there receive vocational training at the typically remote locations. The Forest Service had informed the union during negotiations in 2010 that it was going to impose random, suspicionless drug testing on all employees. The National Federation of Federal Employees, which represents Job Corps workers, filed suit seeking a preliminary junction, but was turned down in federal district court.

But in National Federation of Federal Employees v. Vilsack, the appeals court sided with the union. Vilsack is Agriculture Secretary Thomas Vilsack, who oversees the Forest Service.

"Although identifying governmental interests in the students' abstention from drug use and in their physical safety, the Secretary offered no foundation for concluding there is a serious drug problem among staff that threatens these interests and thus renders the requirement for individualized suspicion impractical," wrote Judge Judith Rogers, who was joined by Judge Douglas Ginsburg in the majority opinion. "Rather, the Secretary's evidence to date suggests the contrary. Because the Secretary has offered a solution in search of a problem, the designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the 'closely guarded category of constitutionally permissible suspicionless searches.'"

In his dissent, Judge Brett Kavanaugh argued that it seemed sensible to drug test employees at residential schools for at-risk youth, some of whom have previously used drugs.

"In these limited circumstances, it is reasonable to test; indeed, it would seem negligent not to test," Kavanaugh wrote. "To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem. That is especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools."

But Kavanaugh's was the minority opinion, and once again, the federal courts have ruled against random, suspicionless drug testing absent the government making a strong case for its necessity.

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Bill O'Reilly Opposes Marijuana Decrim Because it Might Reduce Racial Profiling

by Scott Morgan, June 07, 2012, 01:41pm

This week's exciting news that Gov. Cuomo and Mayor Bloomberg are backing an effort to end New York City's mindless marijuana arrest crusade didn't exactly result in a round of applause at the FOX News studios. Here's Bill O'Reilly babbling about it.

O'Reilly says the cops "know who the wise guys are," and they're only bothering people who deserve it. That sounds reassuring, oh, except for the fact that NYPD has already searched more young black men than they even have in the entire city. So yeah, they might be catching some of these "wise guys" as O'Reilly so eloquently describes them, but only because they're also searching every other young black man in the city. There is no clever strategy behind it. They're just searching all the black dudes. Stop trying to make it sound sophisticated, Bill.

But the real problem with O'Reilly's logic, and it also highlights the irony of whole ridiculous situation, is that there's no component in this new marijuana decriminalization proposal that would actually require police to stop constantly racially profiling everyone they see. That's not even what this is.

Simple possession is already decriminalized in New York. The measure in question would simply downgrade the more serious charge of "possession in public view" so that racial profiling victims would no longer be charged with the public display of marijuana as a result of police ordering them to empty their pockets. The policy of police racially profiling people and illegally searching them remains intact under this plan. You just get off the hook if any pot is found during the course of police committing misconduct against you.

I'm still in favor of the reform – anything that might stop all these pot busts is great – but it's insane that they're actually going so far as to legalize "public display" of marijuana simply because they can't stop the cops from yanking pot out of people's pockets and then lying about it. New York's marijuana law wasn't really even the problem here and shouldn't actually need to be changed to prevent the racially abusive enforcement and prosecution scheme that's been going on in New York for the past decade.

These were false arrests to begin with and the most appropriate solution would be for police and prosecutors to stop systematically violating people's rights. But apparently that is more difficult than reducing the penalties for marijuana. Wow.

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Federal Appeals Court Rejects Job Corps Worker Drug Tests

Bill O'Reilly Opposes Marijuana Decrim Because it Might Reduce Racial Profiling

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