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Canada: Smell of Pot No Grounds for Arrest or Search, Says Saskatchewan Appeals Court

The Saskatchewan Court of Appeal has ruled that the scent of burning marijuana emanating from a car window is not probable cause for an arrest and vehicle search. The decision came in the case of Archibald Janvier, who was pulled over for a broken headlight four years again in La Loche, Saskatechewan.

When the officer approached Janvier's truck, he said he could smell burnt marijuana. He arrested Janvier for marijuana possession based on smelling the burnt weed, then searched the vehicle and found eight grams and a list of names, which led to Janvier being charged with possession for the purpose of trafficking.

At trial, the judge found that the scent of marijuana created a suspicion it had been smoked, but did not provide "reasonable and probable" grounds for either the arrest or the search. To arrest him based simply on the scent of burnt marijuana violated his right to be free from unreasonable search and seizure, the judge ruled as he declared him not guilty.

The Crown appealed the verdict, but the appeals court upheld the judge's verdict. That was the correct decision, said Ronald Piche, Janvier's attorney.

"Until now, police have used the smell of marijuana as reasonable grounds to arrest someone for possession of marijuana," he told Canwest News Service after the decision. "It always struck me as a little thin, frankly. It's frankly a lazy officer's way of giving out a warrant, and getting to check a vehicle out, and oftentimes finding some evidence."

It's hard to possess something that's already been smoked, Piche continued. "The smell alone can't constitute the grounds, because the smell of burnt marijuana -- as opposed to raw marijuana -- gives an inference that the material is gone, it's dissipated into the atmosphere. So how can you say you're in possession of something that doesn't exist?" Piche said. "There may be suspicion that the person is in possession of marijuana, but that's not enough to base an arrest."

Crown prosecutors, unsurprisingly, were not happy. Crown lawyer Douglas Curliss told Canwest the court's decision was based on the lack of any additional evidence to justify an arrest and search. "The court was of the view that all he had was the smell of burnt marijuana alone; he couldn't act." Still, he said, the Crown will not appeal the decision.

Is there a continental trend here? Last March, the Utah Supreme Court held that the smell of burning marijuana is not enough evidence for a warrantless home search. And just last month, a California Appeals Court ruled that even seeing someone smoking pot inside a home was not sufficient grounds for a warrantless entry.

Civil Rights: Pennsylvania Bill Would Allow Involuntary Commitment of "Drug Dependent" People

A bill introduced in the Pennsylvania legislature would allow judges to order "drug dependent" people into involuntary drug treatment, including inpatient treatment, upon petition by that person's family members. Introduced by Rep. Thaddeus Kirkland (D-Delaware), HB 1594 would allow for repeated 90-day commitment orders -- apparently without end.

The bill would allow the courts to order a drug and alcohol assessment by a psychiatrist, a psychologist specializing in drug and alcohol assessments and treatment, or a certified addiction counselor. If the assessors deem the respondent in need of treatment, the court could impose a 90-day treatment order. Before that period is up, another hearing would be held and another 90-day treatment order could be issued. According to the bill, "The court may continue the respondent in treatment for successive ninety-day periods pursuant to determinations that the person will benefit from services for an additional ninety days. The court may also order appropriate follow-up treatment. If the court finds, after hearing, that the respondent willfully failed to comply with an order, the court may declare the person in civil contempt of court and in its discretion make an appropriate order, including commitment of the respondent to prison for a period not to exceed six months."

In other words, if a court deems you a drug dependent person in need of treatment, you can theoretically be detained indefinitely in treatment or even be sent to prison if the court is not satisfied with your progress.

What makes the bill especially frightening is the broadness of the standard definition of "drug dependence," the most widely used of which is that in the Diagnostic and Statistical Manual IV (DSM-IV). Under its criteria countless marijuana smokers -- and even coffee drinkers -- could be considered "drug dependent." According to the Substance Abuse and Mental Health Services Administration (SAMHSA), in 2000, some 14.5 million Americans fit the definition.

According to Keystone State observers, the bill is unlikely to go anywhere. It has been sitting in committee for months. But given that it represents such a frightening example of the drug war's totalitarian impulse, it is worth noting.

Tobacco: In Wake of Smoking Ban in Bars, Restriction on Strip Clubs, Underground "Smokehouses" Appear in Cleveland

Ah, the unintended -- if not unforeseeable -- consequences of prohibition. The Cleveland Plain Dealer reported Sunday that in the wake of a crackdown on strip joints and smoking in bars, a new, if shadowy, presence has made itself known on the back streets of the city: the smokehouse. These unlicensed premises offer what legal clubs and bars cannot: a place for tipplers to smoke while they drink and watch strippers after midnight. Vice cops say they also provide a haven for prostitution.

The smokehouses are a response to laws that took effect last year banning smoking in public places and nude dancing after midnight.

One Cleveland vice detective, Tom Shoulders, compared the smokehouses to the gin houses of the Prohibition era. "You put too many restrictions on people, they're going to find someplace else to go for their entertainment," he said.

According to what snitches are telling the cops, the smokehouse patrons, mainly suburban white guys, bring their own liquor, cigarettes, and cigars, while doormen at the clubs collect entry fees of up to $25 for a "buffet."

"They have succeeded in creating this underground, sleazy, cash-only business that cannot be regulated, taxed or secured by police," said Skip Lazzaro, an attorney who represents legal nightclubs in court -- although it isn't clear if he should be referring to the proprietors and clients or to the legislature.

While the combination of after-hours strippers and underground smoking is a new twist, the smokeasy isn't. In fact, smokeasies, or clubs that covertly allow smoking despite laws prohibiting it, seem to pop up just about everywhere smoking bans do. From New York to San Francisco, and many places in between, you can find them... if you only know whom to ask.

Ecstasy: Kansas Bill Would Make Simple Possession a Felony

Lawmakers in Kansas this week held a hearing on a bill that would make possession of ecstasy a felony. Under current Kansas law, simple possession is only a misdemeanor.

That would change under HB 2545, which is being pushed by the Kansas Narcotics Officers Association. Making possession a felony would keep "children" from taking the drug, said the association's Mike Life in remarks reported by the Wichita Eagle. "We're telling them that it's not a big deal by keeping it as misdemeanor status," he argued.

But the Kansas Association of Criminal Defense Attorneys begged to differ. Saddling young people with felony records for ecstasy possession will not help them, the group worried.

The Kansas Sentencing Commission also dashed some cold water on the proposal. It would cost the state an extra $1.3 million and put an additional 291 people into the prison system, the commission found.

The committee took no action this week. Perhaps this measure will quietly go to the oblivion it deserves.

How many drug dealers does it take to supply a 10,000-person community? Or, is Twiggs County, Georgia, the latest Tulia?

Pete Guither over at Drug WarRant has spotted a report on what looks to be a suspiciously large number of drug busts -- 17, with 11 more warrants pending, all following a six-month undercover investigation -- in the sparsely populated Twiggs County in Georgia. Twiggs has 10,184 residents, at latest count -- the largest city, Jeffersonville, boasts a mere 1,028 residents. The county is so small, in terms of its population, that there is exactly one auto repair shop. Which raises the question, can a county that small really support 28 drug dealers? The same question came up in the Tulia scandal, where about 46 people, almost all of them black, were convicted and imprisoned for drug dealing based on the testimony of a rogue cop, who as it turns out had made it all up. Many of the names listed in the indictment have an African American sound to them. Comments from local officials also raise questions about the operation's timing. In issue #520 of the Chronicle, we reported that Congress had substantially cut funding for the federal grant programs that support these kinds of task forces and that law enforcement organizations were engaged in a massive lobbying/media campaign to try to get the funding back. Twiggs police clearly had that situation in mind when they spoke with the press:
Officials, however, are concerned about the future of such major operations. Special agent Martin Zon of the GBI's state drug task force said federal funding for the task force has been cut by nearly 70 percent in the newest budget. Once it takes effect in July, the budget cuts could hamper law enforcement efforts in the drug war. "We've been a recipient of these funds for many years, and in December we learned that these grants would be cut drastically," Zon said. "Our budget was cut by 70 percent, which cuts our ability to fulfill requests from places like Twiggs." Mitchum said he's also concerned that he may not have certain state resources to call upon in the future. "The task force is a big help to departments our size," he said. "We use their equipment, their personnel, their expertise. We wouldn't want to see their funding cut. It's really important they keep it."
If it is a case of law enforcement busting people as taxpayer-funded lobbying for funding, it would be nothing new -- Pete pointed out such a case in Kentucky last year, and I noted a 2006 press release from the California Attorney General's office that directly admitted it, in a previous blog post on that topic. There are other examples, too.
Jeffersonville, GA
United States

Medical Marijuana Bill Introduced in Kansas on January 28, 2008

[Courtesy of the Kansas Compassionate Care Coalition] An historic first step was taken today toward obtaining legal protections for patients who use, and physicians who recommend marijuana as part of a treatment program for debilitating medical conditions! The Senate Healthcare Strategies committee voted to introduce The Medical Marijuana Defense Act which allows for a “defense to prosecution” for legitimate medical marijuana patients charged with possession of marijuana. This means a person who is charged with possession of marijuana can obtain a written certification from a physician to use in their defense to the charge. Under current Kansas law, legitimate medical marijuana patients can not raise the issue of their medical use to a judge or jury. The bill includes protections for physicians who recommend the use of marijuana to their patients. The bill also would reject out-of-state medical marijuana cards and registrations from being used as a defense in Kansas courts. Laura A. Green, the Director of the Kansas Compassionate Care Coalition requested the committee introduce the bill, and it was approved on voice vote. Only Senator Vicki Schmidt (R-Topeka) was opposed to allowing the bill to be introduced. The bill is now in the State Revisor’s office. They will put it into bill format and forward it for bill number assignment. This process should take about 7 days. A hearing on the bill is expected in the next few weeks. We will let you know when the bill number and committee hearing date have been assigned! Please voice your support for The Medical Marijuana Defense Act by signing our statement of principles on our website or by contacting your legislator and asking them to support medical marijuana legislation in Kansas. Use the online system at our website,, to send your message directly to their email inbox. We would like to thank everyone who has signed the statement and sent us letter of support. Together we can ensure that medical decisions remain between a doctor and their patient! Laura A. Green Coalition Director
United States

Law Enforcement: Nebraska Man Files Complaint Over Bogus South Dakota Bust

As part of a new Drug War Chronicle occasional series on victims of the war on drugs, we told the story of Eric Sage back in November. Now, there are new developments.
Eric Sage
On his way home to Nebraska after attending the Sturgis Motorcycle Rally in South Dakota last summer, Sage's motorcycle was pulled over by a highway patrolman. A pick-up truck accompanying him also stopped, and when the patrolman searched that vehicle, he found one of the passengers in possession of a pipe and a small amount of marijuana. Bizarrely, the patrolman charged not only all the pick-up truck passengers but also Sage with possession of paraphernalia.

Unlike most people arrested on drug charges -- even bogus ones -- Sage refused to roll over. That prompted local prosecutors to threaten to charge him with "internal possession," a crime (so far) only in South Dakota, and a charge even less supported by the evidence (there was none) than the original paraphernalia charge. After repeated multi-hundred mile trips back to South Dakota for scheduled court hearings, Sage's charges mysteriously evaporated, with prosecutors in Pennington County lamely explaining that they had decided the charge should have been filed in another county.

Sage was a free man, but his freedom wasn't free. Sage says his encounter with South Dakota justice cost him thousands of dollars, lost work days, and considerable stress. Now, he is seeking redress.

On Monday, Sage and South Dakota NORML announced that he had filed complaints with several South Dakota agencies and professional standards groups regarding the actions of the prosecutors, Pennington County (Rapid City) District Attorney Glenn Brenner and Assistant DA Gina Nelson, and the highway patrolman, Trooper Dave Trautman.

Sage accuses Trautman of improperly charging everyone present at the incident with possession of paraphernalia. He also accuses Trautman of concocting an arrest report long after the fact to support the new charge of internal possession. Sage accuses Assistant DA Nelson and her boss of prosecuting a case they knew was bogus and of threatening to convict him of an offense where they knew he was not guilty because he refused to plead to the original paraphernalia charge.

"They mugged me," Sage said. "They cost me $4,000. I had to travel to Rapid City several times, I had to hire a lawyer, I missed work. It cost me three times as much to get them to drop a bogus charge as it would have cost me to say I was guilty of something I didn't do and pay their fines. They only quit when they ran out of clubs to hit me with."
Main Street during Sturgis Rally (courtesy Wikimedia)
Prosecutors didn't even have the courtesy to let him or his local attorney know they had finally dropped the charges, Sage said. "My lawyer called Gina Nelson several times to see if I needed to drive up on Nov. 21," he said. "She wouldn't return the calls. So when I got there, I found the charges had been dropped on the 16th. Gina had purposefully made me drive one more 500 mile round trip, for nothing."

Now, we'll see if the powers that be in South Dakota will bring the same dogged determination to seeing justice done in this case as they do to going after anybody who even looks like a small-time drug offender. You can read Sage's complaints to the South Dakota Department of Public Safety, the South Dakota Bar Association Disciplinary Committee, and the Pennington County Commission here.

Medical Marijuana: Berkeley Declares Itself a Sanctuary City

The Berkeley City Council gave a collective raised middle finger to the DEA Tuesday night, unanimously approving a resolution declaring the city a sanctuary in the event the federal agency attempts to interfere with its medical marijuana dispensaries. Passage of the resolution was greeted with loud applause, according to the Daily Californian, the student newspaper at Cal Berkeley.

The resolution was opposed by the DEA, and softened last month to accommodate grumbling from Police Chief Douglas Hambleton and City Manager Phil Kamlarz, but it still puts the city on record as "opposing the attempts by the US Drug Enforcement Administration to close medical marijuana dispensaries, and declaring the City of Berkeley as a sanctuary for medicinal cannabis use, cultivation, and distribution that complies with State law and local ordinances in the event that" the DEA tried to raid one of the city's regulated dispensaries.

The resolution also reinforces a 2002 Berkeley policy directing police not to cooperate in federal medical marijuana investigations. City police were criticized last fall after arriving at the scene of a DEA action related to a raid on a Los Angeles dispensary. The resolution reemphasizes that the Berkeley police and the city attorney's office are not to cooperate with the DEA in "investigations of, raids upon, or threats against physicians, individual patients or their primary caregivers, and medical cannabis dispensaries and operators" operating within California law.

In addition, the resolution directs the city clerk to send letters to Alameda County, of which Berkeley is a part, to state Attorney General Jerry Brown, and to Gov. Arnold Schwarzenegger, urging them to appropriately support medical marijuana.

The city of Berkeley has now committed itself to ensuring that its residents have access to medical marijuana, but it's not clear just yet exactly what that means. The resolution directs the police chief and the city manager to try to find ways to turn the resolution into reality. If the DEA shuts down Berkeley's dispensaries, will the city provide medical marijuana? Will it help new dispensaries set up? The answers are in the making.

Medical Marijuana: First Kansas Bill Introduced

In a historic step, the Kansas Healthcare Strategies Committee voted Monday to introduce the state's first medical marijuana bill. The bill, titled the Medical Marijuana Defense Act, would allow legitimate medical marijuana patients arrested for pot possession to raise their medical use as "defense to prosecution."

Under the bill, people arrested for possession could present a written certification from their physicians to defend themselves in court. Out-of-state medical marijuana cards and registrations would not be a valid defense. The bill also includes protections for physicians who recommend medical marijuana to their patients.
Robert Stephan, KSCCC press conference, August 2007
The bill is the result of months of groundwork by the Kansas Compassionate Care Coalition and its director, Laura Green. The effort to get a medical marijuana bill in the legislature this session had its public coming out last August, when Green organized a press conference where former Republican state Attorney General Robert Stephan came out in support of medical marijuana legislation.

Green requested that the committee introduce the bill, and that request was approved on a voice vote with only one representative dissenting.

"This is simply an issue of compassion," said Green.

"It costs a lot of money to introduce a bill," complained Sen. Vicki Schmidt (R-Topeka), the sole no vote. She added that the bill violates federal law -- it does not -- and that it would be difficult to ensure each patient used the same amount of marijuana.

The bill is now at the State Revisor's Office, where it will be formatted and given a bill number. That should take about a week. After that, look for hearings sometime next month.

Medical Marijuana and the Right to Work: Under Attack in California and Oregon, At Risk In Most Other States As Well

Last week's California Supreme Court decision upholding the ability of employers to fire employees who test positive for marijuana even if they are patients has shone a spotlight on an increasingly contested grey area created by the disjuncture between state and federal policies toward medical marijuana. With last week's decision, California's more than 150,000 medical marijuana patients now face renewed insecurity on the job. But 11 other states also have medical marijuana laws, and patients are equally at risk of job loss in most of them.
the infamous ruling
While every state medical marijuana law says employers are not required to accommodate on-the-job use, most have provisions that could be interpreted as protecting medical marijuana users' employment rights, but only one, Rhode Island, explicitly protects patients, according to Karen O'Keefe, assistant director of state policies for the Marijuana Policy Project (MPP).

"There are several states -- California, Montana, Nevada, Oregon, and Rhode Island -- that specify that patients cannot be punished by professional licensing boards, and New Mexico and a number of other states have language like 'not subject to penalty in any manner,'" she said. "In Washington, it says 'the people shall not be denied any right or privilege.'"

But whether such language really means patients are protected from being fired for testing positive on a drug test is likely to be sorted out only by court cases or legislation. Better to get that explicit protective language written into the law in the first place, suggested Jesse Stout, executive director of the Rhode Island Patient Advocacy Coalition (RIPAC).

"We did get specific employment protections written into the law, as well a protection from discrimination in terms of enrolling in schools and leasing property," said Stout. "This happened because we went to our patients and asked them what they thought, and they said they wanted marijuana treated like any other medicine."

While Rhode Island advocates had to take other measures out of the bill to ensure passage, employment protections were not controversial. "They weren't a problem," Stout said.

As a result, Rhode Island's 600 medical marijuana patients are among the best protected in the country when it comes to employment protection. And they don't have to rely on the courts or the legislature to provide protection after the fact.

In California, on the other hand, the Supreme Court has settled matters -- at least for now -- with its ruling last week. In that decision, the Court found that employers may fire workers who use medical marijuana in compliance with California's Compassionate Use Act -- even if they are off duty and even if their use does not affect their job performance.

In that case, Gary Ross, whose doctor recommended medical marijuana for chronic back pain resulting from an injury incurred while serving in the Air Force, was hired by Raging Wire as a systems engineer in 2001 and was required to take a drug test as a condition of employment. He provided the company with a copy of his doctor's recommendation, but the company fired him a week later because of a positive test result.

Ross sued, alleging that the company violated the California Fair Employment and Housing Act (FEHA) by not accommodating his disability. He also argued that the company fired him in violation of public policy because the Compassionate Use Act legalized medical marijuana in the state.

But in siding with employers, the state high court said the state's Compassionate Use Act protected users only from criminal prosecution. "Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees," wrote Justice Kathryn Mickle Werdeger for the majority. "Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions."

Additionally, Werdeger noted, even though medical marijuana is legal under state law it remains illegal under federal law, and "the FEHA does not require employers to accommodate the use of illegal drugs."

Justice Joyce Kennard was scathing in her dissent. The decision was "conspicuously lacking in compassion," she wrote. "The majority's holding disrespects the will of California's voters." The voters "surely never intended that persons who availed themselves" of the medical marijuana act "would thereby disqualify themselves from employment," Kennard said.

She wasn't the only one. "This was an atrocious decision that generated a scathing dissent," said Joe Elford, legal counsel for the medical marijuana defense group Americans for Safe Access, who argued the case for Ryan. "When California voters passed a law ensuring the right of ill Californians to use marijuana, they didn't expect people to be fired for exercising that right."

"This is a decision is based on tortured logic designed to lead to an absurdly narrow reading of the law," said Bruce Mirken, San Francisco-based communications director for MPP. "The court is claiming that California voters intended to permit medical use of marijuana, but only if you're willing to be unemployed and on welfare. That's ridiculous on its face, as well as cruel, as Justice Kennard rightly observed in her dissent."

If the California Supreme Court has slapped patients in the face, at least one legislator is prepared to seek redress in Sacramento. In a press release the same day, San Francisco Democratic Assemblyman Mark Leno announced he would introduce legislation protecting medical cannabis patients' right to employment.

"Today's California Supreme Court ruling strikes a serious blow to patients' rights," stated Leno. "In the coming weeks I will introduce legislation that secures a medical cannabis patient's right to use their doctor recommended medication outside the workplace. Through the passage of Proposition 215 in 1996 and SB 420 in 2004, the people of California did not intend that patients be unemployed in order to use medical marijuana."

If in California the battle over the employment rights of medical marijuana users will ultimately be decided in the legislature, in Oregon, the state with the second highest number of medical marijuana patients, some 16,000, the legislative battle is already in its second year. But instead of legislation seeking to protect patients' rights, Oregonians are faced with competing proposals to instead protect the rights of employers to fire those patients.

Last year, a bill that would essentially have allowed employers to discriminate against medical marijuana patients handily passed the state Senate before dying in committee in the House on the last day of the session. This year, in what is supposed to be a limited special session that lasts only through February, legislators are again seeking to provide cover for employers.

"They are trying to get a watered-down version of last year's bill through," said Leland Berger, an attorney and one of the leaders of Voter Power, the group behind the 1998 passage of the Oregon Medical Marijuana Act (OMMA).

With the special session not yet underway, the bills are currently in the form of "legislative concepts." A hearing was held last week to introduce the competing bills, which would protect employers from lawsuits filed by medical marijuana cardholder employees fired for positive marijuana tests.

Along with Oregon's panoply of medical marijuana advocacy groups, the ACLU of Oregon was a staunch supporter of patients rights' last year, and is back at it again this year. "We oppose both of these bills and any like them for a number of reasons," said Andrea Meyer, legislative director for the ACLU of Oregon, who has been working legislators on the issue. "First, we don't think they're necessary or effective. They talk about impairment, but most employers rely on urinalysis testing to determine impairment, and urinalysis doesn't measure impairment. We know that marijuana metabolites can stay in the system for up to 30 days after ingestion, but that has no correlation with impairment," she said.

"This sort of legislation discriminates against medical marijuana cardholders," Meyer continued. "Oregonians voted to enact a medical marijuana law so people could lawfully obtain marijuana in almost the same manner as any other medicine, and we don't think patients using marijuana should be treated any differently than patients using codeine or morphine or amphetamines," she said.

"We believe in a safe workplace, and we think when an employee is impaired for whatever reason -- emotional distress, under the influence of alcohol or lawful medications or illegal drugs, illness -- the employer has the legal authority to take action," Meyer said. "But we aren't any safer when an employee relies on a urinalysis to determine whether someone is a hazard in the workplace."

The federal government's refusal to recognize medical marijuana is a key part of the problem, said Meyer. "If marijuana could be prescribed like any other controlled substance, I don't think employers would be suggesting it should be treated differently. The fact that the federal government proscribes it gives employers the excuse. What all this says is that we need to change the Controlled Substances Act and make medical marijuana available by prescription," she argued.

Barring that unlikely event, it will be up to the states to protect the employment rights of their medical marijuana patients. "The California Supreme Court decision is an ill omen," said ASA's Elford. "Every one of the medical marijuana states should pass legislation to protect patients, but I'm afraid that's not going to happen."

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