So Pot is Legal in Your State

But officer, pot is legal in my State….

This election day, two states are reported to have legalized recreational use of marijuana – Colorado and Washington.  Oregon voters were also presented with the issue on their ballots but voted against recreational legalization.  In addition to the legalized recreational use, according to the National Organization for the Reform of Marijuana Laws or NORML, another 18 states have authorized marijuana use for medicinal purposes.  Iowa is not one of them.  Marijuana cultivation, possession, and distribution is still illegal under Federal law.

The question that has started to rise and will most likely arise with greater frequency is, what happens if an individual from a state where marijuana is legal for recreational or medicinal use is caught in possession of pot in a state where it is illegal.  The first answer to the question is relatively straight forward – that person will most certainly be arrested and prosecuted for the offense.  The State of Iowa still has some of the toughest marijuana laws in the nation.

After the individual is arrested and charged however, there are two likely defenses, in addition to the traditional defenses such as illegal search and seizure, which could be attempted.

First, one might be tempted to argue that one state must give another state’s laws full faith and credit under the Federal Constitution.  Unfortunately that argument does not ordinarily apply to criminal statutes.  For example, just because it is legal for a 21 year old to have sex with a 14 year old in one state, does not make it legal for that same activity to occur in a state where the age of consent is 16.  That might be an extreme example but think about it; just because you can drive 70 mph on Interstate 35 or Interstate 80 in your state does not mean that you can drive 70 in a state where the posted speed limit is 65 on the same interstate.  The same argument will be made regarding marijuana possession.  If it is illegal in the state you are in at the time you possess it, chances are you can still be found guilty.  Ones efforts are probably better focused on other more legitimate defenses.

The second and more promising potential argument, at least in the State of Iowa, relates to the possession of medicinal marijuana.  Iowa Code §124.401(5) prohibits the possession of controlled substances, including marijuana.  However, it specifically states: “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner….  Consequently, an arguable defense to the charge is built right into the statute IF the person possessed the pot pursuant to a valid prescription or order of a practitioner.

This exception would NOT apply to felony possession offenses such as Possession with Intent to Deliver, or Manufacturing. NOTE: Sharing pot qualifies as “delivery” in the State of Iowa!  Furthermore, if the prescription has expired or the amount possessed exceeds the amount authorized under that prescription, this defense will not have a chance.

Obviously, it should go without saying that the best defense to any crime is not to place oneself in a position where they are at risk of getting arrested and charged in the first place.  That is never a pleasant experience.  That being said however, some of us are willing to take greater risks than others.  If you happen to be a risk-taker driving through the State of Iowa, understand that there is a good chance of having to endure the unpleasant experience of Iowa’s drug interdiction efforts which are certain to increase with other states legalizing recreational use of marijuana.  If you find yourself in such a position, you will wish that you had first educated yourself on your constitutional rights that apply to a traffic stop/interdiction situation.  Effectively exercising your rights can make all of the difference.  Remember GRL Law’s tag line: Shut up; Wise up; Lawyer up.

1.    Shut up – anything and everything you say can and will be used against you.  If you admit to the officer that you only intended on “sharing” your pot with your friends – you just admitted to a Felony in the State of Iowa.  Shut up!

2.    Wise up – You do not have to consent to a search of your person or vehicle.  If you or your friends may be in possession of something illegal, exercise that right.  The more obstacles a law enforcement officer must jump over, the greater chance there is of him making a mistake on your case.

3.    Lawyer up – Don’t go at it alone.  The consequences in the State of Iowa are still severe and a conviction remains on your record in this state for life.

Don’t let a fun recreational trip cross country turn into an eye-opening encounter with another state’s criminal justice system.  At the very least educate yourself before you leave home.

Know your rights; Exercise your rights; Preserve your freedom.

Community Caretaking and the 4th Amendment

In this day and age of increasing law enforcement presence, police interaction with citizens is at an all-time high. This isn’t always necessarily a bad thing as a strong police presence in our communities most certainly has a deterrent effect on crime.

Local law enforcement also has an expanded role, commonly referred to as “community caretaking.” As the United States Supreme Court has explained, when exercising the “community caretaking” role, law enforcement is presumably interacting with the public in a way that is “totally divorced from the detection, investigation or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). In other words, local law enforcement is not just designed to detect and apprehend criminals they are also responsible for providing the community at large with assistance when it may be needed.

There are three recognized types of “community caretaking” activities engaged in by law enforcement: 1) rendering emergency aid; 2) automobile impound/inventory; and 3) acting as a public servant. The most common two are the first and third; “emergency aid” and “public servant.”

The “emergency aid” activity means what it says. If an officer has specific information leading him to believe that a person is in need of emergency assistance, the officer may stop that individual in order to render that aid. This most often times arises in the context of individual’s suffering from medical problems while driving. Obviously, if there are objective facts pointing to a person being in need of legitimate emergency assistance we want to encourage officers to render that aid.

The “public servant” activity is a little more all-encompassing and involves situations were a citizen is in need of some other type of help. For example; a vehicle is on the side of the road with a flat tire. If a police officer were to just drive by us when we are broken down on the side of the road with a flat tire, we would complain that the officer isn’t doing his job which is often described as to “protect and to serve.” The conflict however, arises when a police officer “seizes” a person to execute one of those “community caretaking” functions.

Not all police interactions with citizens qualify as a “seizure” though. Police will routinely engage in “consensual encounters” where the person is free to go about his/her business if they so desire. During these encounters, any evidence obtained or observations made by the police officer, may be used against the individual. However, if the officer engages in conduct that turns the “consensual encounter” into a “seizure,” such as telling the person not to leave, there must be a legal basis for him to do so, i.e., suspicion of criminal activity.

A “seizure” occurs when law enforcement, through a show of authority, restrains a person of their freedom to move around and go about their business. When a “seizure” occurs, the privacy protections of the Fourth Amendment to the United States Constitution and Article 1 Section 8 of the Iowa Constitution are invoked. Law enforcement may not “seize” an individual without a valid legal basis because doing so violates the Constitution and all evidence obtained as a result of the police action may be suppressed or thrown out of court.

More and more, we are seeing law enforcement attempting to justify their “seizure” of an individual under the “public servant” function of the “community caretaking” exception to the Fourth Amendment. In these situations, the officers admit that the person did not violate any traffic laws nor did they have a reason to believe the citizen was engaged in criminal activity. However, the officer claims that he felt it necessary to stop the person to “see if everything was alright.”

The Constitution has never permitted a “stop and see” approach to law enforcement. It has always required a specific and articulable basis to believe the person has done something wrong or is genuinely in need of assistance. However, some district courts have been convinced by prosecutors to rule that “stop and see” vehicle stops qualify under the “public servant” function of the “community caretaking” exception to the warrant requirement.

The “public servant” function really has not been addressed or discussed in any great detail by Iowa Appellate Courts. What is and is not permitted under this function is far from clear. However, many States have already said that police officers may not “seize” a person in order to engage in the “public servant” function because no legitimate public interest is served in those situations and it would open it up for abuse through “bogus” stops under the guise of “just trying to help.” Recently, the attorneys at GRL Law raised the issue before the Iowa Supreme Court.

In State v. Kurth, the defendant was pulled over in a parking lot of a Perkin’s restaurant after running over debris that had been left in the roadway. The officer admitted that Mr. Kurth did not violate any traffic laws and that he did not have a basis to believe he was engaged in criminal activity at the time. However, the prosecutor argued and the district court agreed that the officer was acting as a “public servant” in checking on Mr. Kurth when he stopped the vehicle.

The fatal flaw to the justification of these types of stops is that there simply is no legitimate societal interest that is furthered by officers “seizing” a motorist in order to render assistance. In each and every case, the public interest can be just as well served by the officers engaging in a “consensual encounter” without needing to actually “seize” the individual. Nothing would prevent an officer from merely walking up to the person and asking if they need help. There is no restraint of their freedom at that point and thus, no concern with a potential violation of the 4^th Amendment. If the person does not need help they can go on about their business. If they want help, then they can accept the officer’s generous offer of assistance at that point in time. There simply is no legitimate public interest that is served by restraining someone of their freedom in order to “help” that person out. If this were the case, then every motorist who pulls over to the side of the road in order to send or receive a text message (which is the law) would be subject to being pulled over by law enforcement just to see if they are ok.

Ultimately, this question will finally be answered by the Iowa Supreme Court. The Kurth case is scheduled to be argued on April 4^th at 9:00. A decision will be issued by the Iowa Supreme Court in the months following.

"Big Brother" Reigned In

The United States Supreme Court reigned in "Big Brother" today with its decision in United States v. Jones, holding that the Government must first obtain a search warrant before installing and monitoring a G.P.S. device on a suspects vehicle.

In a day where increased unmanned observation of citizens seems to be an all but accepted way of life with traffic cameras, invasive airport scanners and other similar technology, today's decision by the Supreme Court is a refreshing reminder of the importance of the Fourth Amendment. The Supreme Court's ruling can best be summarized as follows: The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their person's houses, papers, and effects, against unreasonable searches and seizures." The Government's physical intrusion (installation of a tracking device) on an individual's "effect" (vehicle) for the purposes of obtaining information constitutes a "search." Consequently a search warrant is required prior to the intrusion. (See Your Rights).

The Fourth Amendment to the United States Constitution has long protected citizens from governmental intrusion into their private affairs. Although not as commonly discussed, the Fourth Amendment also stands as a stout protector of private property from governmental interference or intrusion. Justice Scalia, delivering the opinion of the Court, emphasized and reiterated the proud and longstanding tradition that the protection of private property, made possible through the Fourth Amendment, has in our country. He emphasized: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Justice Scalia then quoted the historical explanation by Lord Camden: "Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law."

The Government argued that Jones it should not matter that they trespassed on Jone's private effects because he did not have a "reasonable expectation of privacy" in the area of the vehicle accessed by the Government agents (its underbody) and in the location of the vehicle on the public roads, and thus, no Fourth Amendment violation took place. They made this argument relying upon two prior cases decided by the Supreme Court where it held that placement of a "beeper" into a container that was subsequently transported by a defendant and tracked by law enforcement did not qualify as a "search." However, the Supreme Court rejected that argument, pointing out that those two cases (United States v. Knotts and United States v. Karo) involved placement of the tracking device on the property with the "then owner's" permission. Consequently, there was no "trespass" against the individual's property as was the case in Jones, where the agents installed the device on his private property, without his nor anyone else permission.

It is also notable that there was considerable debate between the Justices regarding what the proper approach should be for determining whether a "search occurs" in future cases not involving a physical trespass to a person's property. However, that debate is better left for the legal academics and future cases to ferret out. The key to this case is this: When the government physically invades personal property to gather information, a search occurs within the meaning of the Fourth Amendment to the United States Constitution. If no search warrant or exception to the warrant requirement exists at that time, then the search is illegal and all evidence obtained as a result of the illegal search must be suppressed (thrown out of court).

On an interesting side note, none of this would have been an issue had law enforcement did what they were supposed to do in the first place. Law enforcement initially obtained a search warrant to install the GPS unit on Jones' vehicle but did so a day late and a State short. The warrant required the installation of the device in the District of Columbia within 10 days from the date it was issued. Unfortunately, the agents installed the device in the State of Maryland on the 11th day. Consequently, the warrant did not authorize the installation and the Court had to analyze the case as if no warrant had been issued at all. This is a classic example of had law enforcement done their job correctly in the first place, we wouldn't even be talking about this.

Supreme Court Limits Search Incident to Arrest

The United States Supreme Court has recognized that an individuals right to privacy in their vehicle still exists.

While it appeared that the appellate courts were on a path to completely eliminate an individuals right to privacy in their vehicle, the United States Supreme Court unexpectedly reaffirmed the concept of personal privacy and protection against governmental intrusion. In the decision of Arizona v. Grant, filed today, http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf, the United States Supreme Court condemned the practice of courts sanctioning law enforcement searches of vehicles after an occupant has been placed under arrest for an offense unrelated to the search. For years in Iowa, law enforcement would routinely arrest occupants of a vehicle on outstanding warrants or traffic violations and then search the entire passenger compartment of the vehicle, including any and all containers in that area, pursuant to that otherwise lawful arrest. Many times these subsequent searches would lead to additional charges included illegal possession of firearms or other weapons or drug offenses. This practice has long been criticized by defense lawyers, academics and even members of various appellate courts including the United States Supreme Court as not falling within the purpose of the search incident to arrest exception to the warrant requirement. The purpose behind the search incident to arrest exception to the warrant requirement has always been officer safety, to prevent an individual from arming themselves and injuring officers, and also to preserve evidence. Neither one of these purposes are served when a vehicle is searched after an occupant has been arrested, handcuffed, and secured either on the side of the road or in the rear of a squad car. Our Supreme Court has finally put an end to this practice.

The United States Supreme Court specifically held that the search incident to arrest rationale "authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." In a footnote, the Supreme Court then recognized that "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains." fn4. In reaching its ultimate conclusion however, the Court did clarify that it is the offense for which the person is being arrested that makes all the difference. They left it open that "circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thus, if the person is arrested for a traffic violation or outstanding warrant, the police may not search the vehicle incident to that arrest. However, if the person is arrested for a drug offense and the officers have reason to believe that additional evidence of the drug offense may be present in the vehicle, they may then search the interior of the vehicle without a warrant in order to "secure potential evidence."

The rule announced today makes perfect sense and prevents officers in abusing their authority to arrest for even minor violations as a facade or excuse to search the interior of the persons vehicle. As Justice Stevens pointed out: "A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals." While there are numerous other exceptions that law enforcement may attempt to rely upon to search a vehicle, one has been narrowed and the Court has taken a large step in realing in prior decisions that have severely limited an individuals reasonable expectation of privacy.