Yesterday, the Supreme Court considered what the Fourth Amendment requires when the police want to search an arrestee’s cell phone. The outcome will depend on how the Court applies an old rule to new technology—a challenge that is likely to recur in the years to come as smartphones, cloud computing and tools like license plate readers change both the way we store information and the government’s ability to collect and analyze it.
Before the police can search your home or property, they need a warrant or an exception to the warrant requirement. One well-established exception is the so-called “search incident to lawful arrest” doctrine. This rule says that the police can search an arrestee without a warrant, simply on the basis of the arrest. The rationale for this exception is that an arrestee might have a weapon on them or try to destroy evidence after they’re arrested. Plus, because an arrestee is being taken into custody, she has a reduced expectation of privacy.
Until recently, this exception was relatively uncontroversial. It meant that the police could look through an arrestee’s pockets, wallet or purse for weapons, drugs or other evidence—something they would be very likely to do anyway while booking the person back at the station.
But how should this rule apply now that we carry our “entire lives on cell phones,” as Justice Kagan put it during oral argument? Should the government be able to rummage through the cell phone of every single person they arrest for hours or days without a warrant? Or, should a different rule apply to phones?
Yesterday, after months of anticipation, the Department of Justice announced its response to marijuana legalization ballot measures passed by voters in Washington and Colorado last November. The DOJ said it does not plan to sue Washington and Colorado to block the new laws. The agency also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.
If you felt a sense of déjà vu reading that paragraph, there’s a good reason.
In 2009, The New York Times ran a front-page article about a different DOJ memo under the headline U.S. Won’t Prosecute in States That Allow Medical Marijuana. The 2009 Times article reported that “[p]eople who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law, the Justice Department said Monday in a directive with far-reaching political and legal implications.”
By early 2012, however, Rolling Stone ran a story titled Obama’s War on Potin which writer Tim Dickinson forlornly told the story of how “over the past year, the Obama administration ha[d] quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush.”
Will the DOJ’s new marijuana policy live up to the hype? Or, will we see a replay of what happened following the 2009 memo? Policy advocates seem to be split so far, with some calling it a historic turning point for U.S. drug policy and others taking a wait-and-see approach.
Only time will provide a definitive answer to this question. But comparing yesterday’s memo with 2009’s can help us understand what to watch for in the months to come. A few points are worth particular attention.
The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases. The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor. The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties. Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms. (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)
The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.” And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability.
Take drug couriers for example. Drug couriers are considered expendable by drug organizations. Most are addicts or otherwise down-on-their luck. In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown. They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border.
By Alex Kreit, associate professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law. Kreit is also the chair of the American Constitution Society’s San Diego Lawyer Chapter.
Tomorrow, the Supreme Court will be hearing oral argument on an unusual double jeopardy issue in Blueford v. Arkansas. Blueford presents the following problem: What happens if a jury orally announces in Court that it has voted “unanimous against” guilt on Charges A and B, is sent back to continue deliberating about lesser-included Charge C without a verdict being entered as to A and B, and finally deadlocks. Can the government retry the defendant on Charges A and B?
The facts of the case are heartbreaking: Blueford’s then live-in girlfriend left her 19-month-old son McFadden in Blueford’s care while she went to run some errands. Soon after, the baby suffered a serious head injury. He was taken to the hospital and died days later. The injury’s cause was hotly contested at trial. The prosecution’s theory — based on expert testimony and evasive conduct by Blueford following the incident — was that Blueford had slammed the child to a mattress on the floor. Blueford testified that the injury resulted from an accident. According to Blueford, McFadden had grabbed hold of a lit cigarette and brought it near Blueford’s face from behind. This startled Blueford and led him to jump, striking McFadden in the process. The defense presented two medical expert witnesses of its own in support of Blueford’s account.
The trial court instructed the jury on capital murder and three lesser-included offenses: first-degree murder, manslaughter, and negligent homicide. The court told the jurors that they should consider the charges one at a time, starting with the most serious. Only if the jury had a “reasonable doubt of the defendant’s guilt on the charge of capital murder” should it go onto to consider the lesser-included offense of first-degree murder, and so on.
By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.
Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.
The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.
In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.