Wednesday, August 27, 2014
Although California passed the first modern medical marijuana law in 1996 and saw the first wave of medical marijuana dispensaries, the legal status of dispensaries in the state is still somewhat unsettled. While government officials in places like Oakland have backed large scale retail outlets, in other parts of the state a handful of District Attorney's offices have argued that retail marijuana stores are illegal under state law. San Diego, where I live, has arguably been ground zero for this view--with one Deputy District Attorney going so far as to write a lengthy law review article (PDF) on why medical marijuana sales are actually illegal under California law.
For the most part, appellate courts have held that retail medical marijuana outlets are permitted under California law (though the state Supreme Court has yet to weigh in.) Last week saw another decision reaffirming the legality of retail medical marijuana sales in CA v. Baniana (PDF).
Here are a few relevant excerpts:
[California's Medical Marijuana Program Act (MMPA)] permits qualified patients and their designated primary caregivers to join together “in order collectively or cooperatively to cultivate marijuana for medical purposes” without being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775.)
In 2010, the Legislature added section 11362.768 to the MMPA. (Stats. 2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such entities from operating “within a 600-foot radius of a school.” (§ 11362.768, subd. (b).) “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (§ 11362.768, subd. (e).)
The prosecutor argued defendant was not entitled to the defense because the MMPA did not legalize the sale of medical marijuana. He asserted that while it may be lawful for a qualified patient unable to take part in the actual tending to the plants, or to devote time and effort on behalf of Herbal Run, to support the organization strictly through monetary contributions, the prosecutor argued any monetary contribution could not be contemporaneous with an exchange of marijuana. According to the prosecutor, such an individual would have to make his or her monetary contribution prior to the planting of the marijuana the patient would eventually be given.
The MMPA does not impose this limitation on qualified patients. First, the purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified patients have safe access to affordable medical marijuana. We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine. It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana. Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The MMPA does not anticipate a patient who has received a physician’s recommendation must thereafter wait months to lawfully acquire medical marijuana.
Of course, the MMPA did not make lawful all sales of marijuana. The defense it provides is limited to those qualified patients and primary caregivers who associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for profit remain illegal. However, given the MMPA’s purpose, one provision in the MMPA implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§ 11362.768), and another provision specifically provides a defense to violation of sections 11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale), we conclude a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit. The district attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the MMPA to make access to medical marijuana easier for patients, and is contrary to a fair reading of the section. Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances. Were this not the Legislature’s intent, there would have been no need to list section 11360 or section 11366 [opening or maintaining a place for the purpose of selling or giving away marijuana] as statutes to which the defense applies.
It is getting harder and harder for recalcitrant prosecutors to argue that California law does not permit retail medical marijuana dispensaries. But, as this opinion suggests, there are still other ways that California's horribly vague law can be a trap for the unwary in the hands of a drug war-style prosecutor. The particulars of the non-profit operation requirement remain almost entirely unclear, for example. A Los Angeles-area appellate decision from the spring highlights some of the problems. (Frankly, I think the "collective and cooperative" statute would almost certainly be found unconstitutionally vague if it were not for the fact that a vagueness holding would presumably mean striking down the defense entirely, which would obviously be of no help to defendants. I'm fairly certain this is why the issue is never raised in these cases.)
This recent holding is good news for medical marijuana advocates in California. But unless and until the legislature gets their act together and passes comprehensive statewide regulations, a steady stream of appeals attempting to make sense of the mess in place now will almost surely continue.
Thursday, July 10, 2014
As reported in this Boston Globe article, the Massachusetts "Supreme Judicial Court Wednesday said that because voters decriminalized small amounts of marijuana in 2008, police officers in Massachusetts can no longer rely on the odor of unburnt marijuana to justify searching a person’s car." Here is more:
In two unanimous rulings, the state’s highest court said they had already decided in 2011 that the odor of smoked marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles people are riding in.
The court said in its 2011 ruling that it would be legally inconsistent to allow police to make warrantless searches after they smell burning marijuana when citizens had decided through a statewide referendum question that law enforcement should “focus their attention elsewhere."
The court said Wednesday it was now extending the same reasoning to cases where the owner has not yet started smoking it. Marijuana, the court acknowledged, generates a pungent aroma, but an odor by itself does not allow police to determine whether a person has more than an ounce with them. Possession of an ounce or less of marijuana is not a crime.
“The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations," Justice Barbara Lenk wrote for the unanimous court.
“We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile."...
The court also rejected the argument from law enforcement that local police can use the odor of marijuana to stop someone because possession of marijuana is still an offense under federal law. “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search," Lenk wrote.
Thursday, July 3, 2014
The federal government has been taking a hands-off approach in Colorado (at least, so far). If that ever changes, however, Colorado operators are sure to be facing lengthy sentences. A recent case from the Eighth Circuit serves as a good reminder of this fact.
In the case, an Iowa man named Robert Meeks participated in a marijuana growing operation that netted between 300 and 500 marijuana plants annually. He was convicted of conspiracy to manufacture 1,000 or more marijuana plants. To make matters worse for Meeks, in 1987 he was convicted of aiding and abetting the distribution of cocaine. As a result, Meeks was subject to a 20 year mandatory minimum sentence.
On appeal, Meeks argued (among other things) that the sentence amounted to cruel and unusual punishment. Not surprisingly for those familiar with the caselaw in this area, the appeals court rejected that argument:
The district court sentenced Meeks to the mandatory minimum sentence of 240 months’ imprisonment. This sentence was based on the jury’s special finding that the conspiracy involved 1,000 or more marijuana plants and on the fact that Meeks had previously been convicted of a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A), 851. We repeatedly have held that applying a mandatory minimum penalty for drug offenses does not violate the Eighth Amendment. United States v. Garcia, 521 F.3d 898, 901 (8th Cir. 2008) (collecting cases). Meeks argues, however, that the 20-year mandatory minimum sentence is grossly disproportionate to the underlying crime because (1) the conspiracy involved the manufacture and sale of marijuana rather than “harder-core” substances, such as cocaine; (2) the prior drug conviction which qualified Meeks for the mandatory minimum occurred twenty-six years ago; (3) the sentence results in a near-life sentence given Meeks’s age; and (4) the profit from the growing and sales operation was negligible. None of these arguments demonstrates that Meeks’s case is the extreme case that violates the Eighth Amendment. See United States v. Burton, 894 F.2d 188, 190, 192 (6th Cir. 1990) (holding that marijuana’s Schedule I classification is not irrational, and thus the resulting penalties do not violate the Eighth Amendment); United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982) (holding that marijuana’s Schedule I classification is not irrational); United States v. Gallegos, 553 F. App’x 527, 532-33 (6th Cir. 2014) (holding that 20-year mandatory minimum sentence for conspiring to distribute at least 1,000 kilograms of marijuana did not violate the Eighth Amendment); United States v. Hoffman, 710 F.3d 1228, 1232-33 (11th Cir. 2013) (rejecting argument that life sentence based on convictions that occurred approximately twenty-five years earlier when defendant was a juvenile constituted cruel and unusual punishment); United States v. Mathison, 157 F.3d 541, 551 (8th Cir. 1998) (holding that a sentence “although in excess of a defendant’s life expectancy, does not violate the Eighth Amendment”); Ewing, 538 U.S. at 28-30 (holding that the defendant’s sentence of 25 years’ to life imprisonment was not unconstitutionally disproportionate where the defendant stole three golf clubs worth about $1,200 and was a recidivist). Accordingly, we conclude that a term of 240 months’ imprisonment, imposed for Meeks’s offense of felony drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A), is not “grossly disproportionate,” Ewing, 538 U.S. at 30, and we affirm his sentence.
Wednesday, June 11, 2014
Simple possession of marijuana is a federal crime. Only a very very very small fraction of marijuana possession cases end up in federal court (for example, in 2010, there were about 1,000 federal marijuana possession cases disposed of in federal court (PDF) and 750,000 simple marijuana arrests nationwide.) Compared to the number of people who use and smoke marijuana every year, the number of federal marijuana possession prosecutions is ridiculously small. About 25 million Americans use the drug every year. But only an unlucky 1,000 or so end up in federal court for possessing it.
Of course, even most of the marijuana simple possession defendants who end up in federal court are not facing very serious penalties--a first offense is a misdemeanor and carries no mandatory prison time.
But the cliffs and bright lines of the federal sentencing guidelines--even in their advisory state--can sometimes change the equation and result in real federal time for possession of small amounts of marijuana. Yesterday, in an unpublished decision (PDF), the Eleventh Circuit upheld a federal gun sentence that included an additional 20 months for possession of less than 2 grams of marijuana.
Here are the relevant details:
Jabriel Fitzgerald Lakes appeals his 58-month sentence, imposed after pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing hearing, the district court enhanced Lakes’ base offense level by four points pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Lakes “used or possessed a firearm . . . in connection with another felony offense.” The district court found that, due to his prior drug convictions, Lakes’s possession of 1.8 grams of marijuana at the same time as his possession of a firearm constituted “another felony offense” under the language of 21 U.S.C. § 844(a). The court then imposed a 58-month sentence, which fell within the applicable guideline range of 57 to 71 months’ imprisonment.
Lakes appeals the application of the four-point enhancement to his base offense level as substantively unreasonable, arguing that the resulting sentence is unduly harsh given the circumstances of this case. Lakes argues that application of the enhancement “resulted in a grossly disproportional sentence in light of the actual amount of marijuana” in his possession at the time of arrest. While Lakes concedes in his brief that his prior drug convictions would render him ineligible to receive misdemeanor treatment on the marijuana charge under 21 U.S.C. §§ 841(b)(4) and 844, he argues that an additional 20 months of imprisonment for possession of less than 2 grams of marijuana is patently unreasonable.
At his sentencing hearing, Lakes pointed out that his applicable guideline range which would have been 37 to 46 months without the enhancement, jumped to 57 to 71 months “for such a small amount of drugs.” As stated by his lawyer at sentencing: “As a practical matter I don’t know that you could cover up my thumbnail with 1.8 grams of marijuana . . . I am certainly not excusing any of this stuff, but it’s just a small amount that—and such a large enhancement, really, for such a small amount of drugs.” Lakes stated that he was holding the marijuana for a friend, and not for himself. Accordingly, he argued, the application of the enhancement does not serve the factors enumerated in § 3553(a).
After three prior drug convictions, Lakes was caught with a loaded firearm while in possession of three separate bags of marijuana, subjecting him to the four- level enhancement under the advisory guidelines. The record demonstrates that the district court considered the parties’ arguments, the presentence investigation report, the Guidelines and the § 3553(a) factors when it pronounced its sentence. The sentence is within, and at the low end of the applicable guideline range. It is also below the statutory maximum, further lending itself to a finding of reasonableness. Thus, Lakes has not met his burden of showing that the district court abused its discretion in applying the enhancement. We affirm the district court’s sentence as reasonable.
Wednesday, May 21, 2014
On Monday, a New Mexico appeals court upheld an order requiring an employer (and its insurance company) to pay for an employee's medical marijuana. The decision involves a worker who was seriously injured on the job. The employer did not dispute the employee's eligiblity for worker's compensation generally, but objected to coverage of medical marijuana. In what, to my knowledge, is a first, the court held that medical marijuana is covered under the New Mexico Workers' Compensation Act.
Here's an overview of the case, from the opinion's introduction (PDF):
We consider in this appeal whether, under the Workers' Compensation Act (theAct), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), an employer and insurer must reimburse an injured worker for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26-2B-1 to -7 (2007). The workers' compensation judge (WCJ) found that Worker Gregory Vialpando was qualified to participate in the State of New Mexico Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. The WCJ ordered Worker to pay for medical marijuana through the program and Employer and Insurer Ben's Automotive Services and Redwood Fire & Casualty (collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the WCJ erred because his order is illegal and unenforceable under federal law and also thereby contrary to public policy, and (2) the Act and regulations promulgated pursuant thereto do not recognize reimbursement for medical marijuana. Because we agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we affirm.
The outcome is a bit of a surprise since it seems the employer is being ordered to commit a federal crime. The court's discussion on that point is perhaps the most interesting part of the opinion (though the whole thing is worth a read for those who follow marijuana law.) It seems that sloppy lawyering on the part of the employer/insurer may have played a role in the outcome. Though the employer raised the preemption issue generally, it apparently failed to cite to a specific federal statute it would be violating by paying for its employee's marijuana.
Employer does not attempt to challenge the legality of the Compassionate Use Act. Instead, Employer asserts that, because marijuana remains a controlled substance under federal law, the order to reimburse Worker for money spent purchasing a course of medical marijuana “essentially requires” Employer to commit a federal crime. However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).
Also of note, the court's discussion of whether requiring an employer to pay for medical marijuana is at-odds with federal public policy:
Employer also argues that the order should be reversed because it is contrary to federal public policy as reflected in the CSA and Gonzales. Worker contends that federal public policy supports medical marijuana because the Department of Justice has announced a somewhat deferential enforcement policy. Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes. On one hand, the Department of Justice affirmed that marijuana remains illegal under the CSA and that federal prosecutors will continue to aggressively enforce the statute. But, on the other hand, and in the same documents, the Department of Justice identified eight areas of enforcement priority and indicated that outside of those priorities it would generally defer to state and local authorities. In addition, the Department of Justice stated that it informed the Governors of Washington and Colorado, two states that voted to legalize possession of marijuana and regulate its production and distribution, that it would defer its right to challenge those laws. We also observe that New Mexico public policy is clear. Our State Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” Section 26-2B-2. We decline to reverse the order on the basis of federal law or public policy.
I'm not sure how much precedential value the opinion has. If the employer's attorneys were more thorough, I don't think they would have had much trouble pointing to a federal statute that they would be forced to violate by paying for marijuana (21 USC 844, as an accomplice, comes to mind.) But, because the employer didn't highlight a specific statute, the Court of Appeal was able to side-step the issue. I suspect attorneys for employers/insurers in future cases will be careful not to make this same mistake.
Monday, May 12, 2014
Louisiana appeals court overturns life sentence for marijuana possession (though the defendant still faces a minimum 20-year sentence on remand)
Louisiana may be one of the harshest states when it comes to marijuana sentencing, but a recent case indicates there may be some limits even there.
Last week, a state appeals court overturned a life sentence for marijuana possession as excessive under state law. (The defendant's excessiveness argument arose under Louisiana law; he did not make an Eighth Amendment argument.) As a habitual felon, the defendant's marijuana possession conviction subjected him to a sentencing range of twenty years to life. Though the court of appeals struck down the life sentence, the defendant still faces a minimum of twenty years for his marijuana conviction (and may very well receive a much longer sentence on remand.)
Here is the heart of the court's decision (PDF):
While Defendant is a fifth-felony offender for sentencing purposes, and the trial court had discretion to impose a sentence between twenty years and life imprisonment, imposition of the maximum penalty within the sentencing range is excessive and disproportionate given the specific facts of this case. Defendant’s remaining conviction, possession of marijuana, second offense, is a relatively minor felony and only carries a penalty of a fine “not less than two hundred fifty dollars, nor more than two thousand dollars, [or imprisonment] with or without hard labor for not more than five years, or both.” La.R.S. 40:966(E)(2)(a). Furthermore, most of Defendant’s past crimes involved non-violent, drug-related offenses. While he was convicted of aggravated second degree battery when incarcerated as well as attempted possession of a firearm by a convicted felon, these isolated incidents do not indicate an extensive predisposition to violence, and the violent or non-violent nature of these past crimes alone cannot be the deciding factor in an excessive-sentence determination. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672.
The imposition of a life sentence for such a small underlying crime also poses a much greater harm than good for society, as such a sentence will only fuel Louisiana’s incarceration epidemic and lead to unnecessary economic and social burdens on inmates and taxpayers alike. See State v. Jackson, 11-923 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243, writ denied, 12-1540 (La. 1/18/13), 107 So.3d 626 (Thibodeaux, J., dissenting). While sentence enhancement deters recidivist tendencies and encourages rehabilitation, these goals become tarnished when offenses deserving of a mere slap on the wrist are instead subjected to a “lock-em-up and throw away the key” philosophy. If the applicable enhancement statute provides a range of sentences for the trial court to consider, then the maximum sentence of life without parole should not be levied unless carefully articulated findings and reasons for sentencing clearly justify its imposition.
North Dakota Supreme Court rejects the use of an out-of-state medical marijuana recommendation as a defense
North Dakota does not have a medical marijuana law (at least, not yet). But can someone with a medical marijuana recommendation from another state rely on that recommendation as a defense in North Dakota?
The North Dakota Supreme Court addressed the issue last week, holding that out-of-state medical marijuana recommendations are no defense to prosecutions in North Dakota.
Perhaps more interesting, the Court also considered whether evidence of an out-of-state recommendation can be introduced for the limited purpose of determining whether a defendant intended to distribute the marijuana she possessed. In other words, could a defendant charged with possession of marijuana with the intent to distribute argue that her out-of-state recommendation is evidence that she possessed marijuana for her own use rather than to sell it?
The Court did answer this second question directly because of the procedural posture of the case (the defendants were appealing from a conditional guilty plea). The Court's decision seems to suggest, however, that a defendant with an out-of-state medical marijuana recommendation might be able to introduce evidence of it for purposes of determining whether she is guilty of possession with an intent to distribute or only of simple possession.
The most relevant portions of the Court's opinion follow:
Larson and Kuruc argue the district court abused its discretion by refusing to admit their respective medical marijuana prescriptions from the State of Washington as a lawful defense under North Dakota's Uniform Controlled Substances Act. The district court denied Larson and Kuruc's motions in limine to include the prescriptions as a defense.
Larson and Kuruc argue the possession of a controlled substance pursuant to a prescription or order is a valid defense. Under Washington law, their prescriptions allow each party to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants. The prescriptions were issued by a licensed neuropathic doctor in Washington. Larson and Kuruc seek to use the prescriptions to contend they were in lawful possession and as a defense against the charge of possession with intent to deliver.
North Dakota's Uniform Controlled Substances Act contains a prescription exception that allows a person to possess a controlled substance if "the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice . . . ." N.D.C.C. § 19-03.1-23(7). Under the exception, this Court has stated, "A defendant may not be charged with possession of a controlled substance if he has 'a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice.'"
A "valid prescription" is defined as "a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a: (1) Practitioner who has conducted at least one in-person medical evaluation of the patient; or (2) Covering practitioner." N.D.C.C. § 19-03.1-22.4(1)(e); see alsoN.D.C.C. § 19-02.1-15.1(1)(f). A "practitioner" is defined as a "person licensed, registered, or otherwise permitted by the jurisdiction in which the individual is practicing to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research." N.D.C.C. § 19-03.1-01(25)(a).
Construing the Uniform Controlled Substances Act as a whole, and harmonizing the prescription exception with the schedule I language, we conclude the plain language of the act does not provide for a medical marijuana prescription defense. Under the authority of N.D.C.C. § 19-03.1-02, the North Dakota Board of Pharmacy has determined that marijuana has a high potential for abuse, and no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision; this determination had been codified by the legislature. N.D.C.C. § 19-03.1-04. In this context, it does not logically follow that there could be a valid prescription for a substance that has no medical use or lacks accepted safety. We do not believe the legislature enacted the Uniform Controlled Substances Act to put North Dakota in the perplexing position where it must recognize out-of-state marijuana prescriptions even though the same exact prescription cannot be made legal for its own citizens.
Larson and Kuruc also argue that their medical marijuana prescriptions can be used as a defense to negate the government's claim that the amount of marijuana possessed evidenced an "intent to deliver." According to the arrest synopsis, Larson and Kuruc were arrested with approximately 12.8 ounces of marijuana. Their respective prescriptions allowed them each to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants in Washington. The district court determined that the jury "will not be instructed a prescription from the State of Washington is a valid defense to either possession with intent to deliver or simple possession. Whether the same evidence may be admissible for some other purpose is a different question, which will be considered as future developments warrant."
Rule 11(a)(2), N.D.R.Crim.P., states "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion." Here, the court left open whether the prescription could be used for some other purpose. We surmise "some other purpose" for allowing the prescription into evidence could be a factual defense to show an amount of marijuana intended for personal use and not for distribution. Although the lower court did not make an affirmative ruling, there is no indication that the court would have prohibited Larson and Kuruc from arguing to the fact-finder that the amount was commensurate with a prescribed personal use and not indicative of an intent to deliver.
Friday, May 2, 2014
Important new appeals court decision on California's medical marijuana law is very bad news for dispensary operators
As I've mentioned before, when it comes to dispensaries, California has a horribly vague medical marijuana law. The law says that patients and caregivers may associate in order to collectively or cooperatively cultivate marijuana but they may not do so for a profit. Courts have pretty uniformly held that this provision of the law permits retail medical marijuana dispensaries. But many of the particulars--like what it means to operate on a not-for-profit basis or whether an employee's criminal exposure should turn on the not-for-profit nature of the enterprise should impact the criminal (given that employees may have no idea how the enterprise is set-up)--remain laregely untested in court.
This week, a Los Angeles area appeals court issued an opinion addressing the collective cultivation law, and the result is not good news for medical marijuana operators and advocates. Indeed, this is one of the most restrictive interpretations of the law that I've seen in a published case. Though it pays lip service to precedent that says storefront dispensaries are allowed, its holding seems to leave most anyone involved in a dispensary open to criminal charges in California.
The decision should also serve as a reminder to attorneys who advise dispensaries in California of the need to be clear about the legal risks with clients (in this case, it appears that an attorney had led the defendant to believe that the operation was in compliance with California's law.)
The defendant was an employee and patient of a medical marijuana dispensary (that was operated by a for-profit company), getting paid between $50,000 - $60,000 annually for growing marijuana. The defendant and the collective had received advice from a private attorney, who seems to have advised that the arrangement was legal. The trial court precluded his medical marijuana defense, a decision affirmed by the court of appeal.
Here are some of the key parts of the opinion (PDF) (though anyone practicing in this area of law in California will want to read the whole thing):
Defendant, Brian Edward Mitchell, appeals after he was convicted of marijuana cultivation. (Health & Saf. Code,1 § 11358.) . . . Defendant entered into two written agreements to grow marijuana every month and sell it to a for-profit corporation that operated a collective of which he was a member. Defendant anticipated being paid $50,000 to $60,000 annually for marijuana delivered to the for-profit corporation. Under these circumstances, defendant may not secure the immunity provided by section 11362.775 [the "collective cultivation" law that I mentioned above--AK.]
In 2002, defendant fractured his spine and was constantly in pain. On September 21, 2007, defendant visited Dr. Wesley Albert. Dr. Albert approved the use of marijuana for defendant’s symptoms.
On November 7, 2007, defendant executed a K.I.M. Membership Agreement [for the medical marijuana collective -- AK].
Mr. Conway testified defendant would regularly spend time at the Barham Boulevard establishment. Mr. Conway testified defendant helped with the collective. Mr. Conway described defendant’s activities at the collective: “Just help us with the cultivation, or that, you know, introductory grow classes.["]
Defendant and Mr. Conway began discussing growing marijuana for the collective. After reviewing the Attorney General’s marijuana guidelines, Mr. Conway and defendant agreed that it “seemed that the collective was in a need” of more marijuana for its membership. Defendant testified there was very limited space at the Barham Boulevard collective for growing marijuana.
As result, defendant met twice with an attorney, Stewart Richlin. Defendant paid money to Mr. Richlin who provided the following advice: “He informed me that in order to grow legally for my collective, there were some documents that I could fill out. There were some certain parameters that I . . . had to stay within, but he advised me
essentially . . . that I was cleared as a patient and a member of the collective to engage in this activity.” Defendant then secured a number of documents which he believed would allow him to lawfully grow marijuana.
On January 28, 2010, Officer Jorge Cervantes of the San Fernando Police Department arrived at the premises rented by defendant at 1933 First Street. Officer Cervantes went to the business in response to a citizen complaint indicating a possible break-in at the 1933 First Street address had occurred. The windows for the premises were covered with a “black plastic tarp-type” of material. Officer Cervantes saw a broken sectional door and glass. The sectional door had been forced open.
Inside the premises, the investigators found “man-made little make shift” rooms divided by tarps. Officer Cervantes saw numerous marijuana plants in various stages of growth in the different rooms.
[D]efendant arrived at the marijuana growing facility on January 28, 2010, after the police had arrived. Defendant presented his medical marijuana identification card and led the investigators throughout the area where marijuana was being grown. Defendant presented documents indicating he was cultivating marijuana for the collective. Defendant discussed the issue of compensation for growing the marijuana with Officer Cervantes. Defendant testified, “I told the officer that I had been advised that I was allowed to keep $50,000 for myself for my contributions to the collective garden.” Officer Cervantes described defendant’s statement about being compensated for growing marijuana, “He said that he was only allowed to keep $50,000 a year for his contributions to the medical marijuana dispensaries.” (Defendant denied saying he intended to sell marijuana to a dispensary.) Defendant described his plan, “The plan was to cultivate for my collective and to be compensated for my time.”
The other limited defense of consequence to our case created by the Medical Marijuana Program Act is section 11362.775 which states, “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under
Section . . . 11358 . . . .” (Italics added.) This defense is limited, as set forth in the highlighted language, to potential criminal liability based solely on the fact the accused engaged in the collective or cooperative marijuana cultivation. Defendant has not been convicted of any crime “solely because” of his collective or cooperative marijuana cultivation. Here, defendant operated, by himself, a sophisticated marijuana growing operation, for which he expected potentially to be paid $50,000 to $60,000 per year. Defendant expected to live off of the income from his marijuana growing venture and to be compensated for all of his expenses. The amount of marijuana he anticipated growing exceeded any quantity that would legally be for his personal medical use. There is no evidence he had any caregiver relationship with any other person in the collective. Defendant commenced his marijuana growing operations only after entering into two written notarized contracts prepared by an attorney with a for-profit corporation, Keeping It Medical. We are in accord with the argument of the Attorney General that defendant’s broad construction of section 11362.775 has no merit.
[D]efendant went beyond the limited immunized scope of collective or cooperative marijuana cultivation. He entered into two separate written notarized contracts to provide marijuana to the Keeping It Medical for-profit corporation. In return, he would be paid a sufficient amount of money so he would recoup his expenses and live off of the rest of the income. His two separate State Board of Equalization seller’s permits, one for a corporation, indicate he expected to earn $60,000 annually. And although not essential, defendant’s marijuana growing venture arose in the context of an absence of any caregiver relationship within the Keeping It Medical customer base and community.
And, of course, defendant’s corporation, Herbmetics, Inc., had no relationship with the K.I.M. Collective other than as a supplier of marijuana.
This case is different from People v. Urziceanu, supra, 132 Cal.App.4th at pages 785-786. In Urziceanu, the defendant was convicted of conspiracy to sell marijuana. (Id. at p. 758.) There was evidence the defendant operated a collective, FloraCare, out of his home. (Id. at pp. 759-765.) The jury was not instructed on section 11362.775. The Court of Appeal held that the jury should have been so instructed. (Id. at p. 785-786.)
In Urziceanu, supra, 132 Cal.App.4th, the only charge upon which a retrial was ordered was conspiracy to sell marijuana. Section 11362.775 prohibits conviction for cultivation based solely on the fact the accused collectively or cooperatively cultivated marijuana for medical purposes. Conspiracy involves matters such as common design, plan or agreement. (See People v. Robinson (1954) 43 Cal.2d 132, 136; see 1 Witkin & Epstein, Cal. Criminal Law 4th ed. 2012) Elements, § 80, p. 375.) The collective action and cooperation elements of section 11362.775 involved a similar type of agreement or conduct covered by the conspiracy to sell marijuana charge in Urziceanu. As noted, the present case does not involve a conspiracy charge; merely marijuana cultivation. Here, defendant was not convicted based on collective or cooperative action by itself. Section 11362.775 has nothing to do with our case. Hence, there is no merit to defendant’s argument his marijuana cultivation conviction must be reversed because his actions were protected from criminal liability by section 11362.775.
Earlier this week, a federal District Court in North Carolina rejected the habeas petition of a man who was sentenced to consecutive terms of 101-131 months (roughly 16 - 22 years) for his role in arranging the sale of $20 worth of marijuana. The petitioner, Robin Eugene Land, argued the sentence was cruel and unusual and that he had received ineffective assistance of counsel. Land's lengthy sentence was tied to North Carolina's habitual felon statute but the opinion doesn't appear to shed light on what his prior offenses were (neither, from a brief review, does the state appeals court's decision on direct review.)
In any event, whatever his prior record, Land will be spending the next 16 to 22 years in prison for arranging (not selling but arranging) a marijuana sale. Oh, and the whole thing began with an undercover cop driving around asking for people to help him find marijuana.
Here are the facts from this depressing case (PDF):
The State’s evidence tended to show the following facts. On the evening of 14 August 2009, Charlotte-Mecklenburg Police Officer Andrew A. Demaioribus was working as part of a team targeting street-level narcotic sales by conducting undercover buy operations on Charlotte city streets. While working undercover, Officer Demaioribus wore plain clothes and drove alone in an unmarked car. Additional police units stayed within two blocks of Officer Demaioribus’ location to provide assistance in the event that Officer Demaioribus' safety was compromised.
At about 11:25 p.m., Officer Demaioribus observed defendant in front of a residence. Officer Demaioribus pulled over and asked defendant if defendant could help him “get some green,” to which defendant replied, “Yeah. I can get you some.” Defendant then got into Officer Demaioribus’ vehicle. Defendant instructed Officer Demaioribus to drive to several residences in the area in search of marijuana.
Before defendant left the car at the first residence, Officer Demaioribus handed defendant a $20 bill. Defendant was unable to locate marijuana at the first few residences. When they arrived at the last location, defendant got out of the car, walked out of sight, and returned after one or two minutes. In defendant’s absence, Officer Demaioribus relayed his location to other officers using a cell phone. When defendant got back into the car, Officer Demaioribus asked, “Have you got my stuff?” Defendant replied, “Yeah. I got your shit. I got it.” Defendant then handed Officer Demaioribus two baggies containing a green substance that Officer Demaioribus thought was marijuana.
After the transaction was complete, Officer Demaioribus gave a “take down signal” to inform other officers that defendant should be arrested. Defendant instructed Officer Demaioribus to drive him to a nearby store. Officer Demaioribus dropped defendant off in the store's parking lot and immediately radioed to a supporting officer, Charlotte-Mecklenburg Police Officer Derek E. Rud, to provide a description of defendant. Officer Rud pulled into the store’s parking lot and arrested defendant. Although he searched defendant pursuant to the arrest, Officer Rud did not locate the $20 bill Officer Demaioribus had given defendant. Subsequently, chemical analysis indicated that the substance in the baggies was 2.03 grams of marijuana.
On 24 August 2009, defendant was indicted for possession with intent to sell or deliver marijuana and for delivering cocaine. Defendant was additionally indicted for selling marijuana. Subsequently, on 2 November 2009, the State obtained a superseding indictment charging defendant with delivering marijuana. In addition, defendant was indicted for being a habitual felon.
Thursday, May 1, 2014
Yesterday, the U.S. Court of Appeals for the Fourth Circuit released an interesting opinion considering the federal "unlawful user" statute. The unlawful user law makes it a crime for anyone who "is an unlawful user of and addicted to a constrolled substance" to possess a firearm--and yes, that includes marijuana.
A while back, the Fourth Circuit sent a case back to the trial court to conduct an evidentiary hearing on whether this law runs afoul of the Supreme Court's recent Second Amendment jurisprudence. The trial court found that making it a crime for a marijuana user to possess a gun did not pose any Second Amendment problem. Yesterday, a unanimous panel of the Fourth Circuit agreed.
Here are a few excerpts from the opinion (PDF), by Judge Niemeyer, that provide an overview of the court's reasoning:
Carter argues that the district court, in concluding that the government carried its burden, erred in two respects: (1) it improperly relied on factors other than empirical evidence in evaluating the soundness of § 922(g)(3); and (2) it failed to recognize that the studies submitted by the government were inadequate because they related to drug use generally rather than marijuana use specifically and they failed to prove a causal link between marijuana use and violence. He maintains that the studies he submitted demonstrate that, in fact, “marijuana users are not prone to violent behavior.”
Focusing on the substance of the studies presented by the government to the district court, Carter contends that the data were inadequate because they related to drug use generally rather than marijuana use specifically and because they failed to prove a causal relationship between marijuana use and violence. He maintains that the studies he submitted, by contrast, demonstrated that “marijuana users are not prone to violent behavior.”
We have little trouble concluding that the studies presented to the district court by both the government and Carter indicate a strong link between drug use and violence. A study by Carrie Oser and colleagues, offered by the government, found that probationers who had perpetrated violence in the past were significantly more likely to have used a host of drugs -- marijuana, hallucinogens, sedatives, and heroin -- than probationers who had never been involved in a violent episode. [The Court went on to cite a few additional studies.)
Carter seeks to marginalize these studies, arguing first that they are too broad and discuss only “general categories of offenders, including those who abuse a range of controlled substances.” He contends that, even if there is a link between “harder” controlled substances and violence, the government’s evidence does not indicate that marijuana users are prone to violence. To the contrary, he claims that the evidence he submitted disproves such a link. Yet, even if such a particularized demonstration is necessary -- an issue we need not reach -- the studies presented by the government amply demonstrate a connection between marijuana use specifically and violence. The Harrison and Gfroerer study, for instance, found that, “[e]ven after controlling for other variables[,] such as age, race, income, education, and marital status, . . . using marijuana in the past year . . . [was] significantly related to criminal behavior.”
Carter also objects to the government’s evidence on the grounds that it demonstrated, at most, a correlation between marijuana use and violence and not a causal relationship. Quoting the Wei study, he argues that “[t]he relationship between marijuana use and violence ‘is due to the selection effects whereby these behaviors tend to co-occur in certain individuals, not because one behavior causes the other.’” (Emphasis added) (quoting Wei et al., Teasing Apart, at 166).
This argument is flawed, however, because it assumes, incorrectly, that Congress may not regulate based on correlational evidence. We conclude that it may and that the government need not prove a causal link between drug use and violence in order to carry its burden of demonstrating that there is a reasonable fit between § 922(g)(3) and an important government objective. . . . We have emphasized that, under intermediate scrutiny, the fit between the regulation and the harm need only be reasonable, not perfect. Carter I, 669 F.3d at 417. The correlational evidence put forward by the parties in the present case easily clears that bar.
Wednesday, April 30, 2014
Federal appeals Judge cites shifting views on marijuana to question mandatory minimum marijuana prosecutions
Earlier this week, in a dissenting opinion, Eighth Circuit Judge Myron Birght raised the question of whether it makes sense for the federal government to pursue mandatory minimum sentences in marijuana cases in a world where a large number of people think the drug should be legal. The legal quesiton in the case (PDF) involved application of the aggravating role enhancement for managers of drug opertions and may be of interest to those who follow federal sentencing law. Judge Bright's comments on marijuana policy follow:
I add an observation. In today’s world where several states in this country have legalized marijuana use for medical purposes and two states have even legalized its recreational use, a hard look should apply to marijuana prosecutions carrying mandatory minimum sentences as in this case. United States Attorney General Eric H. Holder, Jr. has concluded that a new approach must be taken in federal sentencing and that we must ensure that our criminal justice system is “[t]argeting the most serious offenses” and “prosecuting the most dangerous criminals.” . . . Randy Irlmeier’s conduct is not a “most serious” offense nor is he a “most dangerous” criminal. A five-year mandatory minimum sentence for his crime is far too long. I would remand to the district court to apply the safety valve and resentence Randy Irlmeier accordingly.
Monday, April 28, 2014
Because possessing marijuana is a crime, its scent can provide the police with probable cause to search your car or to get a warrant for your home. Though I'm sure most police officers honestly report the facts of their searches, I'm equally sure that there are some bad actors who justify bad searches by falsely testifying that they smelled marijuana. It is very difficult for courts to pick the liars out from the truth tellers and so it is rare to see a decision dismissing an officer's claim to have smelled marijuana.
Last week, however, a federal trial judge in Massachusetts found an officer's marijuana smell story implausible enough to hold against the government (PDF):
An odor of marijuana is often sufficient to justify the warrantless search of an automobile. See Staula, 80 F.3d at 602 (“The case law is consentient that when a law enforcement officer detects the odor of marijuana emanating from a confined area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes the officer with probable cause to conduct a search of the confined area.”). I suspect that not only lawyers and judges know this, but police officers do, too.
After hearing the testimony of Trooper Morris, I do not credit his testimony that he “detected a faint odor of ... raw marijuana coming from the interior of the vehicle.” (Tr. at 18.) Trooper Morris’s testimony is telling as to his true reason for searching the car.
Q. After searching the vehicle and not finding any marijuana, did you remain suspicious?
A. I did.
Q. Why is that?
A. Based on the inconsistencies in their story. And I was concerned that there were -- there was something in the car that I was missing or I wasn’t finding.
Q. And you remained concerned because you could still detect the odor?
A. Not just the odor, just -- like I said, their story was -- their stories weren’t consistent; they didn’t sort of make sense; they weren’t reasonable. So I believed there was something hidden in the car.Perhaps Trooper Morris thought he smelled a faint odor of raw marijuana; perhaps the wish was father to the thought. On the evidence, I am not persuaded there was such an odor, and the government has failed in its burden on that factual issue.
Tuesday, April 22, 2014
Arizona Supreme Court holds driving with trace amounts of marijuana in the blood is not enough for a DUI conviction
The Arizona Supreme Court issued a decision today on marijuana and driving under the influence (hat tip to Elizabeth Joh for passing along the news).
As most readers probably know, marijuana stays in a person's system long after they use it. As a result, a positive blood test for marijuana doesn't mean they person is impaired at the time of the test. Because there is currently no blood or breath (or spit or sweat, etc.) test to accurately measure marijuana impairment the way we do for alcohol, states have struggled over the legal standard for marijuana impairment.
This is a problem that goes far beyond marijuana (it exists for all legal prescription medications, for example) and, I think, is only tangentially related to marijuana legalization (after all, plenty of people use marijuana illegally so marijuana and driving is a concern regardless of its legal status.) Nevertheless, medical marijuana and legalization laws have shined a bit of a spotlight on the issue.
One particularly controversial approach to the issue is to say that driving with any traces of marijuana in the blood is sufficient evidence for a DUI conviction. Today's decision from Arizona's Supreme Court disapproves of this practice. Unfortunately, the opinion page on the Court website is not loading so I haven't yet been able take a look at the decision and am unable to provide a link at the moment (update: the Supreme Court site is working again, opinion (PDF) is here).
For now, this article has a good summary:
The case before the case involves a driver cited for a traffic violation who, when given a blood test, was found to have Carboxy-THC in his system and was charged with driving with an illegal drug or its metabolite in his body.
A trial judge threw out the charge, but the Court of Appeals said the laws on impaired driving “must be interpreted broadly.”
In arguments to the court, Susan Luder, a deputy Maricopa County attorney, acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. She did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.
But Luder told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver's license for a year.
Justice Robert Brutinel, writing the majority ruling, said that argument makes no sense.
“This interpretation would create criminal liability regardless of how long the metabolite remains in the driver's system or whether it has any impairing effect,” he wrote. Brutinel pointed out that Lunder admitted to the justices that, the way Arizona law is worded, “if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”
Update: Now that the opinion is up, the precise question addressed by the Court may frame the issue it decided a bit better than the above. This is the first paragraph from the opinion linked above:
Arizona Revised Statutes § 28-1381(A)(3) makes it unlawful for a driver to be in actual physical control of a vehicle if there is “any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person’s body.” We are asked to determine whether the phrase “its metabolite” includes Carboxy-Tetrahydrocannabinol (“Carboxy-THC”), a non-impairing metabolite of Cannabis,1 a proscribed drug listed in § 13-3401. We conclude that it does not.
Thursday, April 3, 2014
In what has to be one of the more unusual police misconduct cases involving drugs, a group of protesters are suing the police for getting them high. The case involves a group of Minnesota police officers who pushed marijuana on Occupy Minneapolis protesters as part of a training program to teach officers how to recognize when people are under the influence of drugs.
A few days ago, a district court denied the officers' motion to dismiss the lawsuit. The opinion's introduction (PDF) provides the highlights:
This lawsuit challenges the actions of law enforcement officials and entities involved with a Drug Recognition Evaluation (“DRE”) program through which law enforcement officers are trained to identify when citizens are under the influence of illicit drugs. Several individuals involved in the Occupy Minneapolis (“Occupy”) protests bring this action against a long list of law enforcement officials–in both their individual and official capacities–alleging that the officers targeted them to serve as test subjects for the program and provided them with substantial amounts of marijuana in violation of their rights under the First and Fourteenth Amendments of the United States Constitution.
The Court finds that the allegations by some Plaintiffs and with regard to some Defendants adequately state claims for the violation of their constitutional rights. First, the allegations that certain Defendants administered large amounts of an illicit drug to Plaintiffs after intimating threats of arrest without first informing Plaintiffs of the risks or checking their medical histories and with no therapeutic purpose state a claim for violation of Plaintiffs’ clearly established substantive due process right to bodily integrity. Second, allegations that those Defendants chose to target Plaintiffs with this practice based on their participation in a protest state a claim for violation of their clearly established First Amendment rights. The Court therefore will deny Defendants’ motions to dismiss with regard to claims by Plaintiffs Michael Bounds and Forest Olivier against Defendants Jacobson, Kenneth Willers, Karl Willers, and John Does 1 and 2 in their individual capacities and will dismiss without prejudice all claims against those Defendants in their official capacities, all claims against all other Defendants, and all claims by all other Plaintiffs.
Tuesday, April 1, 2014
The question in the title of this post came to mind when reading this Indiana appellate opinion (PDF), released yesterday.
From the opinion, it appears that Indiana's police lab has a policy prohibiting testing of marijuana below a certain quantity. I can only assume that the policy reflects the agency's belief that low level marijuana cases aren't important enough to be worth the laboratory's time.
One might think that if the state doesn't think it's worth a few bucks to test the marijuana, it would feel the same way about spending even more money prosecuting the case. But apparently, that isn't the case.
It seems Indiana is happy to continue prosecuting low-level marijuana cases. It just wants to do it on the cheap, without worrying about making sure that the substance at issue is actually, you know, marijuana.
The court's decision focuses on whether the identity of a substance can be proven by a police officer's testimony alone (without chemical analysis). The court finds that it can, a result that is not an outlier. This rule might make sense at first blush. After all, marijuana might seem to be pretty easy to identify. But misidentification happens a lot more often that one might think (PDF). Just last year, for example, some cops in New York mistook tomato plants for marijuana!
Putting the merits of that debate to one side, Indiana's lab policy seems to take visual identification to a whole new level. It's one thing to permit identification without chemical analysis when evidence is genuinely unavailable (for example, if an adult gives marijuana to a teen and the teen can identify the substance based on its effects.) It seems to me quite another to permit the state simply forego testing of a substance it has in a whole category of cases because it costs too much.
Judge Pyle offered these thoughts, expressing some concern, in a concurrence:
In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity.
While Indiana Supreme Court precedent allows the State to avoid this roadblock by having a law enforcement officer identify marijuana based upon his or her training and experience, the laboratory's present policy prevents prosecutors, and deprives jurors, from considering expert testimony based on scientific principles used to identify marijuana. This is particularly important because the State is required to prove, beyond a reasonable doubt, that an item alleged to be marijuana actually is marijuana.
Additionally, jurors are instructed that proof beyond a reasonable doubt means that they be firmly convincedthat the item is marijuana. When an expert testifies that an item has been examined macroscopically, microscopically, subjected to color tests, thin layer chromatography, and gas chromatography, his or her testimony goes a long way toward identifying an item as marijuana, beyond a reasonable doubt. Thus, increasing public confidence in Indiana's criminal justice system.
The selection of the type of evidence to bring before a jury should, as much as possible, be unconstrained by administrative decisions, and jurors should be able to assume that the State endeavored to bring its best case to trial. There is likely a rational reason behind the laboratory's policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory's policy decision be reconsidered by our colleagues in the executive branch.
Monday, March 31, 2014
Last week, a Louisiana appeals court upheld the conviction and ten-year sentence (PDF) of Kyle Everett for attempted possession with intent to distribute marijuana. From the decision, it appears that Everett was found with somewhere in the neighborhood of $50 worth of marijuana (it isn't clear from the opinion why Everett was convicted of attempted, as opposed to actual, possession).
Officer Hunt then conducted a safety pat down. The officer felt a bulge in the front of the defendant's pants. He asked the defendant about the bulge, and the defendant told the officer that it was marijuana. The defendant shook his leg, and three bags of what appeared to be marijuana fell out of the defendant's pants leg. One bag contained loose marijuana, and the other bag contained ten individually hand-tied baggies of marijuana. The defendant was taken to the police station, where the green material was field tested positive for marijuana. Officer Birks testified that each little baggie appeared to be a "nickel" bag, indicating a value of five dollars for each baggie. Officer Birks further stated that the amount of marijuana that the defendant had in his possession was excessive for personal consumption.
To make matters worse, the officers who arrested Everett were later found to have planted cocaine on a different suspect (by coincidence, Everett's cousin) about a month after they arrested Everett! The officers pled guilty to perjury and malfeasance charges for the cocaine-planting incident. They received suspended sentences and were fined $5,000 and $2,500.
The contrast between the officers' sentences (no jail time, low fines) and Everett's (10 years) is pretty striking.
In his appeal, Everett challenged the constituionality of the search and argued the trial court should have granted his motion for a new trial "on the basis of the subsequent convictions of Officers Hunt and Birks." (The appeals court rejected both arguments.)
Here's the officers' story about stopping Everett:
"[B]oth officers testified that they stopped their vehicle and approached the defendant and the other unknown man as they were riding bicycles and "goofing off" in the middle of the street. The officers stated that they only sought to talk to the defendant about bicycle safety because the defendant and the other man almost created an accident when the officers turned onto the street. We find that the officers were well within their right to make such a stop."
And here's what these same officers did to Everett's cousin one month after Everett's arrest:
Joshua Hunt and Samuel Birks claimed they arrested Bean on Jan. 25, 2011, while on foot patrol at Jackson’s Landing apartments in Algiers. They said a rock of crack cocaine fell out Bean’s pocket as they searched him.
Bean spent more than four months in the parish jail before Hendrix proved that the officers had lied in a police report on the arrest, and that Hunt had lied under oath during a pre-trial hearing in the case.
According to the suit, filed in December 2011, Birks drove up as Bean left his apartment, handcuffed him and placed him in the back of his patrol car.
Birks allegedly told Bean he was wanted in connection with drug dealing in the area. Birks then got a phone call from Hunt, asking to be picked up at a dentist’s office in the 4000 block of MacArthur Boulevard, also in Algiers, the suit says.
With Bean in the back of their patrol car, the officers returned to the Garden Oaks Drive area to cruise around and ask Bean about criminal activity in the area, the complaint alleged.
Hunt then ran a check on Bean’s criminal history and found he was a parolee with three prior convictions. According to the complaint, Hunt then placed a rock of crack in Bean’s jacket pocket, and the officers drove him to the 4th District station to arrest him.
Did these officers do something similar to Everett? The appeals court recognized the possibility but didn't think it likely enough to warrant a new trial (or, apparently, to cast doubt on the officers' questionable account of their stop/frisk of Everett):
[Everett] maintains his innocence and claims that the officers lied to effectuate his arrest and conviction just as the officers lied in the Alvin Bean case. The defendant's argument, while plausible, is simply argument without any factual support or evidence. We do not find that the trial court abused its great discretion when it denied the motion for new trial based on serving "the ends of justice" pursuant to La. C.Cr.P. art. 851(5).
More about Louisiana's marijuana sentencing practices here.
Last week, the First Circuit issued an opinion upholding a 5 year mandatory minimum sentence for possession of a gun in furtherance of a drug trafficking charge, based on possession of marijuana with intent to distribute.
The government found about 7.5 ounces of marijuana in the defendant's car, along with a gun about three feet from the marijuana. At trial, the defendant testified that the marijuana was for his own use:
He stressed that the marijuana found in his van was for his own personal use and claimed he smoked between 10 and 12 joints per day, with each joint containing 1 to 2 grams of marijuana. He estimated that, after he removed the stems and seeds, the 7.5-ounce bag found in his car would yield only 5 or 5.5 ounces of usable drug. Thus, he figured he only had enough marijuana to make about 50 joints, which he said would last him a week or two. He explained that buying his marijuana in bulk was more economical, more convenient, and reduced the risk of getting caught.
The jury sided with the government and, on appeal, the First Circuit rejected the defendant's sufficiency of the evidence challenges (both on proof of an intent to distribute the marijuana and proof that the gun was possessed in furtherance of the marijuana possession.)
The case is most noteworthy for the majority's conclusion, in which it expresses some reservations about the outcome and the government's decision to charge the case as it did in the first place:
Before we wrap up, we pause to make explicit our ambivalence towards the jury's findings. While it is clear that Bobadilla guiltily possessed a small quantity of marijuana and an illegal firearm, whether he intended to distribute that marijuana, as well as whether he possessed the firearm "in furtherance of" a drug trafficking crime, are harder questions. The jury answered "yes" to both. Another jury may have concluded otherwise. Obviously too, another prosecutor could have opted to indict Bobadilla on lesser charges, i.e., simple possession of marijuana and an unlicensed firearm. This prosecutor chose not to, as was within her discretion. And at this stage, we are duty-bound to enforce the jury's amply supported verdict. Consequently, today, like September 27, 2011, is not Bobadilla's lucky day.
The decision is an interesting one for thinking about the scope of sufficiency of the evidence review. The majority feels the need to express its "ambivalence" about the jury's verdict. But it does not feel ambivalent enough to disturb it.
Tuesday, March 25, 2014
The other week a Colorado appellate court held that Amendment 64 applies retroactively, to at least some pre-passage marijuana possession convictions. Just how many marijuana possession convictions remains uncertain, however.
John Ingold of the Denver Post has an article exploring this question today. The headline says it all: "Marijuana ruling could overturn thousands of convictions — or dozens."
Anywhere from a few dozen to more than 10,000 people could be eligible to have their old marijuana convictions overturned as the result of a landmark Colorado Court of Appeals ruling that applied marijuana legalization retroactively.
Colorado defense attorneys are poring through previous marijuana cases, looking for former clients who might be eligible for such relief, but much depends on how subsequent courts apply this month's ruling. On the surface, the ruling appears to have little reach, but attorneys say it is possible courts could follow the reasoning of the ruling to overturn every marijuana case in the state in which an adult was convicted of a crime that stopped being illegal when the state's marijuana-legalization law went into effect in late 2012.
"I think there are thousands of people who could potentially have their convictions overturned," said Sean McAllister, an attorney who specializes in marijuana cases and who said he is already working with several clients to see if their previous convictions could be tossed.
But, in order for that to be true, Colorado courts will have to adopt an expansive reading of the ruling — a scenario prosecutors see as unlikely.
The full article explains the issues and uncertainty in more detail.
Saturday, March 15, 2014
The retroactive application of Amendment 64 wasn't the only marijuana law issue before the Colorado appellate courts this week. In a decision that affects a much narrower group of defendants than the Amendment 64 issue, an appeals court (PDF) held that a doctor's post-arrest assessment will not help medical marijuana patients who want to grow more than 6 plants:
Section 14(4)(b) (the 14(4)(b) defense) of the Medical Marijuana Amendment (Amendment), article XVIII of the Colorado Constitution, creates an affirmative defense to the offense of cultivating marijuana, where the plants are needed for medical use. Whether this defense can be asserted based on a physician’s assessment obtained after the offense has been committed presents a novel question. We conclude that the 14(4)(b) defense cannot be raised based on such an after-the-fact assessment. Therefore, we affirm the judgment of conviction of defendant, Stephen S. Fioco, entered on a jury verdict finding him guilty of cultivating more than six but fewer than thirty marijuana plants.
Thursday, March 13, 2014
The interwebs are abuzz with news today that some pre-Amendment 64 marijuana offenders may be able to get their possession convictions wiped away. The appellant, Brandi Jessica Russell, was convicted of possessing less than one ounce of marijuana in August 2011 based on conduct that "occurred twenty months beforeAmendment 64's effective date."
In Colorado, courts presume a change in the law has prospective application only, absent an express intent to the contrary. This presumption can be overcome, however, in some circumstances. Specifically: "Section 18-1-410(1)(f)(I), C.R.S. 2013, permits a defendant to receive postconviction relief if 'there has been significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.'"
The Court held that "Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for 'a significant change in the law' and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct." In reaching this decision, the Court relied on a 1970s-era precedent that reduced some marijuana offenses from serious felonies to misdemeanors. The earlier case seems to be directly on point. Though I do not know anything about this area of the law, the Court's discussion leaves the impression that its decision is on pretty firm ground and unlikely to be overturned in the event the government appeals.
The decision does not appear to open the door for everyone who has a Colorado marijuana possession. The opinion notes that the 1970s case applies to defendants "on direct appeal" and the holding on this issue concludes: "Because defendant’s convictions were pending appeal when Amendment 64 became effective on December 10, 2012, her convictions for possession of marijuana concentrate and less than one ounce of marijuana must be reversed and vacated."
Similarly, because the decision is based on Colorado state law, I suspect it is unlikely to have any significant impact in other states (e.g., Washington), unless those states have similar retroactivity statutes.
Though the decision is limited (both inside Colorado and in its likely impact outside the state), it will give Coloradans with marijuana possession convictions on direct appeal the opportunity to get their record (at least for that charge) cleared. The case also raises the question of whether state legislatures may want to consider going further and permitting those with older convictions to seek expungement.
You can read the decision here (PDF).