40th Anniversary of the War on Drugs June 17, 2011

Friday, June 17th, marks the 40th anniversary of Richard Nixon’s declaration of a “War on Drugs.” To highlight the impact that the drug war has on communities around the world, more than a dozen SSDP chapters are organizing candlelight vigils in cities across the country.

When the Police become the Judiciary

Kentucky vs Hollis Deshaun King

Case Summary

 Lexington, Kentucky: Police fabricate a narcotic deal in order to apprehend a suspected drug dealer.  The deal included the complete transaction of illegal narcotics, allowing the suspected dealer to leave without being apprehended.  The undercover officers who posed as “buyers” were shadowed by an additional undercover officer.  The third officer radioed for uniformed officers as he observed the suspected drug dealer entering a specific walkway of the complex.  The uniformed officers approached the front of two doors unsure of which the suspect had entered.  The officers claim to have smelled marijuana at the door of the left apartment.  The officers proceed to bang on the door and alert the tenants of their presence.  The officers testified that immediately after they started to make their presence known, sounds could be heard from inside the apartment.  These audible disturbances led the officers to believe criminal activity may be taking place and the evidence was in jeopardy of being destroyed.  The police crashed the door and apprehended three individuals who were allegedly smoking marijuana. In addition, the officers found marijuana and powder cocaine in plain view.  A more detailed search discovered crack cocaine, cash, and other drug paraphernalia. 

Lower Courts

A Fayette County Circuit Court grand jury charged the accused with trafficking in marijuana, first degree trafficking in a controlled substance and second degree persistent felony offender status.  The accused filed a motion to suppress the evidence based on a warrantless entry.  The Circuit Court denied the motion, judging the police conduct in accordance with the exigent circumstance exception.  [a1] The smell of marijuana, the “alleged commotion in the apartment”, and the “no response” to police alerting their presence and wish to enter the premise, the Circuit Court ruled, all created an atmosphere in which the officers were justified in preventing the destruction of evidence.  The defendant was convicted and sentenced to eleven years in prison.

The Kentucky Court of Appeals affirmed the lower court’s ruling based on the same exigent circumstances argument.  The appeals court deemed the officer’s actions necessary because of the risk to evidence.  In addition, they ruled the police “did not impermissibly create the exigency… because they did not deliberately evade the warrant requirement.” (Kentucky v. King, Pg.7)

The Kentucky Supreme Court (302 S. W. 3d 649[2010]) overturned the lower court rulings.  The Court found questionable the argument that noise in the apartment meant imminent danger to evidence.  Ultimately, the ruling maintained the validity of the exigent circumstances exception.  The court implemented a two part test to determine whether the police created the exigent circumstance.  First, the police may not act with “bad faith intent to avoid the warrant requirement.”  Second, sans bad faith, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances .”  Utilizing this test, the police were found not to have acted in bad faith.  The Kentucky Supreme Court ruled that the police failed the second part of the test because it was “reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence (Kentucky v. King, Pg. 7).”

Supreme Court

Scalia authored the majority opinion.  He began by citing the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

He noted that the amendment declares:1) all searches and seizures must be reasonable; and 2) a warrant must not be issued unless probable cause is established, including the specifics of what is to be “searched for” and “seized.”  The Supreme Court has “inferred that a warrant must generally be secured  (Kentucky v. King, Pg. 8).” However, Scalia began his ruling with a discussion of the long list (most recently Brigham v. Stuart [2006]& Groh v. Ramirez [2004]) of Court rulings in which the Fourth Amendment is interpreted as not explicitly mandating the need for a search warrant; regardless,Scalia noted that the court has occasionally overcome the need for a warrant based on the “reasonableness” of the search and seizure.  Payton v. New York and Mincey v. Arizona establish the core of Scalia’s belief that exigent circumstances have become an important factor in the defense of law enforcement officials that conduct a search and seizure without first obtaining a warrant.  

Scalia refers to the police activity prior to the entrance of the defendant's residence as a “controlled buy of crack cocaine outside an apartment complex.”

Kentucky v. King. No. 09-1272. Supreme Court of the United States. 16 May 2011. ONLINE http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

 

Medical marijuana patients across the country are under attack!

Despite the Obama Administration's promise to respect state laws, lawyers in the federal government are now threatening to arrest and prosecute people who are legally licensed to grow medical marijuana under state law.  These ideologues are trying to block sensible regulation – and they've already succeeded in Washington State.  We must stop them from erasing all the progress we've made and from leaving patients out in the cold.  Write U.S. Attorney General Eric Holder today to demand that the federal government keep its promise to respect state medical marijuana laws.  Back in 2009, the Obama Administration said they wouldn't use "justice department resources to circumvent state laws" on medical marijuana. They've kept their promise for the past two years, even issuing a memo that made this hands-off approach official policy.
But now, federal government lawyers are intimidating states with new medical marijuana programs in an attempt to end these programs before they even get started. It's already happened in Washington State, where the governor vetoed a promising medical marijuana bill. And if these threats continue, they could jeopardize our efforts in every state where medical marijuana legislation is on the table.

These lawyers are playing politics with the lives of patients who need medical marijuana to cope with debilitating pain and nausea. Take action now and ask the Attorney General to keep the Administration's promise to leave state medical marijuana programs alone. To put a stop to these scare tactics, we don't need any laws changed – we just need the Attorney General to tell the handful of people sending the threats to stop. Write Attorney General Holder today and ask him to keep his word by respecting patients' needs. Then please spread the word – everything we've worked so hard to achieve is at risk!

Thank you again for your help.

Sincerely,
Ethan Nadelmann
Executive Director
Drug Policy Alliance