Should the Odor of Cannabis Constitute Probable Cause in Florida?
by The Law Office of John Guidry II
Oh the times, they are a changin’
Every time I walk into the Orange County Courthouse, I see some guy asking me to sign a petition to “put medical marijuana on Florida’s Ballot”. Somehow, whenever I’m dressed in my work uniform (suit, tie, and briefcase, don’t forget the briefcase), the petition signing hawks leave me alone. It may be that too many “suits” turn out to be jerks, so they just don’t bother. I understand that, and agree. But, if I had the time, I would chat up the “medical marijuana sign holder” and tell him that medical marijuana is perfectly legal in the State of Florida. It has been for almost a year now.
Most people don’t realize this. Medical marijuana is legal in Florida. I’ll keep saying it until everyone takes down the signs asking that we make it legal. It’s legal. Governor Rick Scott signed the law back in 2014, and it took effect on January 1, 2015. The law is found in Florida Statute 381.986, entitled “Compassionate use of low-THC cannabis”.
Now, the question for today may sound like another episode of Inside Baseball, and for that, I’m slightly sorry. It is the effect this law has on probable cause that should concern we citizens. Law enforcement may not search your person, home, or vehicle without a warrant so long as they have “probable cause”. Nine times out of ten, probable cause involves some officer telling his buddy “You smell weed? Yea, I smell weed too, let’s search this place”. Five times out of ten, this odor is detected after a citizen denies the officer permission to search. Up until January 1, 2015, probable cause based upon the smell of weed made a bit of sense, as marijuana was illegal in any form up until that point.
For years now, we defense attorneys have tolerated fabricated odor of cannabis searches that never reveal cannabis. It sounds funny, but some officers have searched a vehicle based upon the odor of cannabis–only to find no marijuana. Shocking, I know. The only drugs found on these “odor of cannabis searches” were cocaine or heroin or oxycodone—none of which smell like weed. Not surprisingly, most prosecutors buy into this odor of cannabis excuse. Even judges buy into it, reasoning that, “well, I guess the defendant had recently smoked weed, that’s probably what the officer smelled, so I’m going to find probable cause for the search based upon the officer’s detection of the odor of cannabis”. Sure, there are several logical objections to such reasoning, if you can find a judge interested in logic (there are plenty). For example, the odor of burnt cannabis is only evidence of a completed crime (the weed is now consumed by fire, duh), so the odor is not evidence that someone is currently committing the crime of possession of cannabis. Furthermore, in cases where a search is conducted based upon the odor—but no weed is recovered–the officer’s nose obviously isn’t accurate enough to detect the presence of cannabis. So, what business does the court have relying on such an inaccurate nose to find probable cause? We have K9’s who, we all can agree, are far better at detecting the scent of drugs than humans—yet several courts have suppressed evidence when it can be shown that the particular K9 utilized is not accurate enough to form probable cause (yes, the police must keep records of their K9’s “accuracy”, a story for another day). Why should a human be treated any different than a K9?
Well, I’m a little bit off track, as usual. We’re talking about searches. We’re talking about the government’s right to obtain a search warrant of your underwear drawer because they smell cannabis outside your home. We’re talking about a speeding ticket that turns into a 4 hour ordeal in which the panels of your dashboard have been broken loose because some cop smelled weed when you rolled down your window (should have rolled down those windows the minute you saw the flashing lights, I’m just saying).
Prior to January 1, 2015, Florida courts have routinely held that the smell of cannabis indicates criminal activity. As we said before, any form of cannabis was illegal. But now, the possession of cannabis is no longer illegal. Now, cannabis possession is legal if possessed under Florida Statute 381.986. Now, the odor of this legal substance should no longer constitute probable cause to search anything.
How Florida’s cannabis statute will impact the determination of probable cause remains to be seen, but several states have had medical marijuana for a while now, so we can gain some wisdom from their decisions. For example, in Arizona, their appellate court addressed “the effect of the Arizona Medical Marijuana Act (AMMA) on determinations of probable cause. That Act renders possession, cultivation, and use of marijuana lawful under some circumstances. Accordingly, those circumstances—not the mere possession itself—now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons state below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant.” State v. Sisco, 359 P.3d 1 (2015).
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NJ Weedman takes to the radio, blames raid of his joint on retaliation
TRENTON – It's been less than a week since Ed "NJ Weedman" Forchion was arrested at his combination eatery-temple in Trenton, but the outspoken marijuana advocate has taken already taken to the airwaves to tell his story.
Forchion spoke with New Jersey 101.5 radio hosts Deminski and Doyle Tuesday afternoon and called out state Senator Ray Lesniak and the Trenton Police Department for "retaliation."
That "retaliation" came in the form of a raid, Forchion said on the radio station. He was arrested along with 10 other people at his "joint" on East State Street last Wednesday and charged with possession of paraphernalia and drug possession for 5 ounces of marijuana that he'd received as a donation, he said.
Forchion said that he believes the police and prosecutor's office is acting out against him for setting up security cameras to film police activity outside his establishment and for filing a lawsuit against the city earlier this year.
Weedman's trip as a marijuana advocate
Ed Forchion, aka NJ Weedman, has been a protestor, candidate, restauranteur and defendant since the 1990s.
"I was told that this came down from high above," Forchion said Tuesday of the order to raid his joint. He went on to say that he thinks Lesniak may be behind the raid and that the senator is representing the police department.
"He's opposed to legalization," Forchion said.
At least part of the reason for his retaliation theory, Forchion said, is that he never had problems before February – and everyone knows he smokes marijuana.
"I have a bong sitting next to me right now," he said in the radio interview.
It wasn't until the February complaint, he said, that police and prosecutors started paying his establishment more attention.
Now, fresh out of jail, Forchion is inviting Mercer County Acting Prosecutor Angelo Onofri to personally handle the prosecution side of his case, while Forchion represents himself.
"I want you to do this... I want you to take this beating," he said in challenging Onofri.
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BY BARRY BARD
The United States Supreme Court made a landmark ruling yesterday that prohibits police officers for holding citizens in custody while waiting for a drug dog to arrive at a standard traffic stop.
Judging a case titled Rodriguez vs. U.S., the court ruled that as long as the crime isn’t clearly drug-related (like speeding or making an illegal turn), cops can’t keep an innocent citizen around simply based on suspicion.
In Rodriguez’s case, he was driving on the shoulder when a police officer pulled him over. That police officer didn’t like how Rodriguez looked, so he then called in a drug-sniffing dog which arrived ten minutes later and sniffed out a little bit of methamphetamine.
But Rodriguez wasn’t a drug mule and he certainly wasn’t committing any crime by driving a tad erratically. Thus, Supreme Court ruled 6-3 in favor of Rodriguez, and dogs all over the nation can no longer be called to sniff drugs out of cars without just cause.
With the need for weed-sniffing dogs subsiding, perhaps dogs can go back to doing what they do best: taking naps and chewing bones.
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Of all the controlled substances that the federal government regulates, cannabis is treated in unique ways that impede research. Specifically, the U.S. government has held back the medical community's ability to conduct the type of research that the scientific community considers the experimental gold standard in guiding medical practice. Thus, the use of cannabis for medical treatment is happening in states based largely on anecdotal or limited science. In many cases, patients and doctors operate according to a learn-as-you-go approach—a situation that is inexcusably the fault of federal policies failing to keep pace with changing societal views and state-level legal landscapes.
In “Ending the U.S. government's war on medical marijuana research,” authors John Hudak and Grace Wallack argue that it is time for the federal government to recognize the serious public policy risks born from limited medical, public health, and pharmaceutical research into cannabis and its use. As medical marijuana becomes increasingly accessible in state-regulated, legal markets, and as others self-medicate in jurisdictions that do not allow the medical use of cannabis, it is increasingly important that the scientific community conduct research on this substance. However, statutory, regulatory, bureaucratic, and cultural barriers have paralyzed science and threatened the integrity of research freedom in this area.
Hudak and Wallack explore the specific federal government policies that limit medical marijuana research and detail the consequences of those policies for the medical community and for public policy. They also examine some of the existing proposals that seek to ameliorate these challenges, concluding that some are meaningful and would make substantive changes that advance medical research, while others are narrow-sighted, misunderstood, and fail to provide the type of large-scale change necessary to achieve reformers’ desired goals. Analyzing the efficacy of one often-proposed solution, the rescheduling of marijuana from a Schedule I narcotic, Hudak and Wallack argue that this specific policy proposal is limited in its ability advance constructive medical research.
Ultimately, the authors recommend a more comprehensive set of policy reforms that will liberate the medical community in its pursuit of research into marijuana.
Download the Paper Here
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Jeff Mizanskey was sentenced to life in prison without parole on a marijuana-related charge. But after two decades behind bars, this victim of the so-called “War on Drugs” walked free.
Mizanskey’s release followed years of widespread support, petitioning and lobbying from family, lawmakers as well as countless advocates for the legalization of marijuana. All agreed on one key issue, that the sentence of life in prison for a controlled substance made no sense, and constituted “cruel and unusual punishment.”
Mizanskey has been locked up for over two decades, serving out a sentence of life without parole at Jefferson City Correctional Center. The law that locked him away after “three strikes” has since been repealed, but the governor would not show the aging man mercy in spite of this fact.
Mizanskey was originally arrested back in 1993 for possessing five pounds of marijuana.
Despite the fact there are thousands of prisoners across the country serving life sentences for similar crimes, Mizanskey’s case has become one of the most highly recognized in the United States.
Earlier this year, a legion of lawmakers from the Missouri General Assembly signed a letter begging Governor Nixon for his release, while a petition authored by Mizanskey’s son, Chris, has also managed to collect nearly 400,000 signatures in favor of his freedom.
This carried with it a sentence of 10 years because of “intent to distribute” the medicinal plant. But because of the draconian law – that would later be struck down – this third conviction sent him behind bars for life. You see, back in 1984 and 1991 he was also arrested, for possession of relatively tiny amounts of the leaf.
In a surprising decision earlier this year, Missouri Governor Jay Nixon said that he would not pardon the well-known case of Jeff Mizanskey, who has been serving a life sentence for marijuana charges. Now, he might have another chance for freedom.
Nixon did pardon nine other nonviolent offenders last month, but letting the 61-year-old man who was jailed over charges related to a natural plant seemed too much to ask the governor.
High Times reported Mizanskey was scheduled back in August “for his first parole hearing since receiving a life sentence with no possibility for an early release nearly two decades ago.”
On Thursday, the 62-year-old will take full advantage of a recent commutation granted by Missouri Governor Jay Nixon, which stated that Mizanskey now has the “opportunity to demonstrate that he deserves parole.” After waiting three months for a hearing, the veteran inmate hopes the parole board will acknowledge that his sentence has never fit the crime and ultimately hand over the keys to his freedom.
Democratic Gov. Jay Nixon allowed Mizanskey to argue for his freedom. While he was denied parole, he was allowed to argue for his freedom, eventually getting his sentence commuted and walking free on Tuesday.
VIA Counter Current News
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Cpl. Ron Francis, a 21-year veteran of the RCMP, is due to stand trial on three charges in Fredericton provincial court. (CBC)
A New Brunswick Mountie who made national headlines for smoking medical marijuana while in uniform last year is due to stand trial today on three charges.
Cpl. Ron Francis previously pleaded not guilty to two counts of assaulting fellow officers and one count of resisting arrest.
The charges stem from an alleged confrontation with fellow RCMP officers and Fredericton police officers who arrested him on Dec. 6 on a mental health warrant.
T.J. Burke, his defence lawyer, has previously questioned the RCMP's motives for seeking a psychiatric assessment of his client.
Burke questioned whether the RCMP were trying to stop Francis from taking his case to the media again, but RCMP said Francis was arrested because officers were concerned about his well-being.
Francis, a 21-year veteran of the RCMP, who served with the J Division in Fredericton, says he suffers from work-induced post-traumatic stress disorder (PTSD) and has a prescription for medical-grade marijuana.
He has publicly argued he should be able to smoke the drug in uniform and has accused the RCMP of trying to force members with PTSD to quit.
Burke has said he plans to "call lots of witnesses and call lots of evidence and get right down to the bottom of why Mr. Francis is facing three charges."
Three days have been set aside for the trial in Fredericton provincial court.
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At the Drug Enforcement Administration Museum in Arlington, Va., an exhibit re-creates a head shop selling marijuana paraphernalia in the 1970s. (Evan Halper / Los Angeles Times)
For narcotics agents, who often confront hostile situations, Capitol Hill has been a refuge where lawmakers stand ready to salute efforts in the nation's war on drugs.
Lately, however, the Drug Enforcement Administration has found itself under attack in Congress as it holds its ground against marijuana legalization while the resolve of longtime political allies — and the White House and Justice Department to which it reports — rapidly fades.
"For 13 of the 14 years I have worked on this issue, when the DEA came to a hearing, committee members jumped over themselves to cheerlead," said Bill Piper, a lobbyist with the Drug Policy Alliance, a pro-legalization group. "Now the lawmakers are not just asking tough questions, but also getting aggressive with their arguments."
So far this year, the DEA's role in the seizure of industrial hemp seeds bound for research facilities in Kentucky drew angry rebukes from the Senate's most powerful Republican. The GOP-controlled House recently voted to prohibit federal agents from busting medical marijuana operations that are legal under state laws. And that measure, which demonstrated a shared distaste for the DEA's approach to marijuana, brought one of the Senate's most conservative members together with one of its most liberal in a rare bipartisan alliance.
How much the agency's stock has fallen was readily apparent in the House debate, when Rep. Jared Polis (D-Colo.) denounced the agency's longtime chief.
Michele Leonhart, administrator of the Drug Enforcement Administration. (Los Angeles Times)
"She is a terrible agency head," Polis said of Administrator Michele Leonhart.
The two had previously clashed over the DEA's insistence that marijuana continue to be classified as among the most dangerous narcotics in existence.
"She has repeatedly embarrassed her agency before this body," Polis said.
Leonhart, who declined through a spokesman to be interviewed, is not getting much backup from the White House.
This year, she complained that President Obama seemed alarmingly blase about what she sees as a pot epidemic. Her remarks to dozens of sheriffs gathered at a conference in Washington came soon after Obama told the New Yorker magazine that marijuana seemed no more dangerous to him than alcohol.
"She said, 'I am so angry the president said what he said and completely ignored the science,'" recalled Thomas Hodgson, the sheriff of Bristol County, Mass.
Her remarks were so frank, Hodgson said, that another sheriff who had been attending such meetings for three decades interrupted Leonhart to tell the crowd what a risk she was taking. The audience then gave her a standing ovation, Hodgson said.
Leonhart went on to complain about a softball game White House staff had participated in with marijuana advocates, and declared that one of the low points of her career had been seeing a hemp flag fly over the Capitol — a display Polis had requested.
When Leonhart left, Hodgson said, she got another standing ovation.
The enthusiasm from law enforcement agents suggests why Leonhart, a holdover from the George W. Bush administration, where she served as acting DEA chief, remains ensconced in her post even as more than 42,400 people have signed a petition demanding her resignation.
"The Obama administration has to walk this tightrope," said Sam Kamin, a law professor at the University of Denver. "The youth vote and a number of populous states are moving in one direction, and elements of law enforcement are not."
He added: "These are people who have spent their lives enforcing marijuana laws. To say we are going to let the states decide what federal law is, is difficult for them to swallow."
The DEA also is operating amid mixed signals.
Many lawmakers think marijuana should no longer be classified among the most dangerous drugs, but they're reluctant to vote to change federal narcotics law. And despite cautious acceptance of state legalization laws by the White House, its enforcement strategy is ambiguous. The statutes that guided narcotics agents at the height of the war on drugs to aggressively go after pot remain on the books.
After word spread in May that Atty. Gen. Eric H. Holder Jr. had called Leonhart in for a private chat and admonished her to stop contradicting the administration, Rep. Frank R. Wolf (R-Va.) rushed to her defense.
Wolf accused Holder's office of a "Nixonian effort to pressure a career law enforcement leader into changing her congressional testimony."
Leonhart "has done an outstanding job leading this agency during a challenging time," Wolf wrote in a letter to Holder.
But that view no longer commands a clear majority in Washington, as the agency repeatedly has run into congressional opposition.
The usually unexcitable Senate Republican leader, Mitch McConnell of Kentucky, reprimanded the DEA after it impounded 250 pounds of hemp seeds en route to the University of Kentucky from Italy. The seeds were to be used by researchers exploring the possibility of reintroducing the hemp industry in the U.S.
Hemp, the fiber of a non-psychoactive cannabis plant, can be manufactured into clothing and numerous other products. One thing it can't do is make a person high. Nonetheless, the DEA deemed the seeds a controlled substance.
McConnell said the agency was wasting limited resources on the seizure "at the very time Kentucky is facing growing threats from heroin addiction and other drug abuse."
Amid political pressure and a lawsuit from Kentucky's Department of Agriculture, the agency granted the university an expedited controlled-substances permit.
The hemp offensive bewildered even some longtime DEA allies.
"It is an unnecessary fight," said Robert Stutman, a retired director of the agency's New York division. "It doesn't affect the drug issue one way or another."
The hemp case also irritated Kentucky's other senator, tea party favorite Rand Paul, who signed on to sponsor the Senate version of a House measure that would curb raids on medical marijuana dispensaries.
A desire to rein in the DEA has kindled an intriguing political alliance between Paul and Sen. Cory Booker (D-N.J.), one of the chamber's most liberal members, who is cosponsoring the measure.
As the DEA has struggled with the politics of marijuana, it also has faced a spate of incidents requiring administration officials to clean up after agents.
The Justice Department last year agreed to a $4.1-million settlement with a man whom DEA agents left handcuffed in a San Diego holding cell without food or water for five days. And federal investigators are looking into charges that the agency has been improperly collecting phone company data and concealing from defendants how the information was used against them.
But neither those problems nor changes in public opinion have caused the agency to shift its ground. The DEA's latest policy paper on pot declares the medical marijuana movement, which has won victories in 22 states, to be a fraud.
"Organizers," it says, "did not really concern themselves with marijuana as a medicine — they just saw it as a means to an end, which is the legalization of marijuana for recreational purposes."
Displayed prominently in the DEA Museum at its Arlington, Va., headquarters is part of a California dispensary that narcotics agents raided and shut down. It sits alongside the rebuilt front of a crack house.
Via LA Times
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by Debra Borchardt
Senators Rand Paul (R-KY) and Cory Booker (D-NJ) offered an amendment that would keep the Department of Justice and the Drug Enforcement Agency from spending federal money to undermine states who have legalized marijuana. The House passed a similar amendment in May, but without the Senate the passage meant nothing. The DEA continues to harass groups involved with marijuana in states that have some legalization. Boston doctors were complaining of intimidating tactics by the DEA who threatened their licenses if they continued to support medicinal marijuana. A NY legislative vote has yet to happen today.
Via The Street
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