Marijuana

Devices - Marijuana Controlled Buy

GATHERING INFORMATION: BIG BROTHER IS WATCHING YOU
Thanks to technological progress, Big Brother can now be almost as omnipresent as God.
— A. Huxley, Brave New World Revisited

UNLIKE MOST OTHER CRIMES, marijuana crimes very seldom involve someone who could be considered a "victim." As a result, the police get very little information about marijuana offenses from alleged victims calling to report a crime. Rather, in most cases, the police must actively seek out information. There ire numerous means by which law-enforcement agencies gather information about marijuana growers, sellers, and users.

Citizeninformer.html

The Citizen Informer
Generally speaking, one of the best sources for information about marijuana crimes is the "citizen informer." This term refers to a supposedly disinterested person who is supposedly acting out of civic duty. In most crimes, the citizen informants are victims or witnesses who report the incident to the police. For :example, a person who is robbed will call the police, report the robbery, describe he robber, and generally try to assist the police in catching the perpetrator. However, in marijuana crimes, citizen informers are often the concerned parents fro a child who was sold or given marijuana or anti-marijuana crusaders who relieve that marijuana use is evil or dangerous and that it is their civic duty to report any tips to the police. For example, the hotel maid in the last chapter was I citizen informer. There are many cases in which the citizen informer was a telephone repairman or a cable-television installer who notified the police after spotting evidence of a marijuana crime while inside a person's home. Similarly, a citizen informer could be your next door neighbor who smells marijuana emanating from your home.
Because citizen informers supposedly are not seeking personal gain from their tip, the Supreme Court has ruled that they are reliable unless there are circumstances indicating otherwise. This means that if a citizen informant calls the police and reports that she has seen evidence of a marijuana crime, the police may rely on that information without having to make any attempts to confirm it. How much reliability they can place on the tip depends on numerous factors most of which center around how the citizen says they obtained the information and the inherent reliability of information so obtained.

The Anonymous Citizen Informer
With the proliferation of programs like "Turn in Pushers" (T.I.P.) and Drug Abuse Resistance Education (D.A.R.E.), law enforcement agencies get a regular flow of anonymous telephone calls in which the unidentified caller tattles on a marijuana user, grower, or seller. Given the caller's refusal to identify him or herself, such information is obviously suspect. It's quite possible, for instance, that the unidentified caller is making a false tip in order to get back at an enemy. Consequently, when police receive an anonymous report of a marijuana crime, they are required to perform some investigation before seeking a search warrant based on the tip.

In some cases, however, the courts have upheld search warrants based on anonymous tips when the police did very little to corroborate the caller's tip. For example in 1993 a federal court in Maine upheld the validity of a search warrant based on an anonymous tip that a man, referred to only as "John," was growing 40 Cannabis plants in his house. The tipster also stated that John's house "reeked" of marijuana, describing the house by noting that it had a new addition. Finally, the caller claimed that a search warrant had been previously executed at John's house and had resulted in the seizure of Cannabis plants, but that John had "beat the charge." Police officers verified that John had previously been the target of a search warrant that uncovered marijuana, and that his house had a new addition. They also discovered that power consumption records for John's home "revealed a pattern of usage consistent with indoor marijuana cultivation, with a dramatic drop in usage following the [earlier] search and substantial increases beginning in the fall of 1990." In upholding the validity of this search warrant the court explained that the police properly investigated and verified enough of the anonymous caller's statements and that the verification vouched for the reliability of the caller's allegations. (U.S. v. Burke [1st dr. 1993] 999 F.2d 59.)

In contrast, in another 1993 case, this time in Kentucky, a detective with the Louisville Police Department of Narcotics received an anonymous telephone call from someone saying that he had been hired to do some work in a home and had observed a large stash of marijuana in the basement. The caller identified the home by its address. According to the affidavit for the ensuing search warrant, 'when questioned about his knowledge of the smell and appearance of marijuana: his person stated that in his younger days he had been a user of marijuana, but now: hat he was older with children he is very anti-drug." Before obtaining the search warrant, the detective staked out the home for about 2 hours but saw no signs of "out traffic in or out of the residence. Without any evidence corroborating the monitors tip, a judge signed a search warrant for the home. Officers who subsequently executed the warrant seized over 300 pounds of marijuana from the casement.

The case against the man was dismissed because the search warrant affidavit 'ailed to state probable cause that marijuana would be found in the man's home. Fee court explained that the officer's stakeout, other than confirming that the home appeared to have a basement, provided no evidence confirming the anonymous caller's accusations. The court explained that the caller was anonymous, and never gave the names of the people for whom he was supposedly working for. Also, the caller did not provide the dates upon which he saw the marijuana. For these reasons the court concluded that the search warrant was unconstitutional. As a result, the 300 pounds of marijuana were excluded from evidence, dissolving the government's case against the man for lack of evidence. {US. v. Leaked [CA 6 KY1993] 998 F2d 1359.)

If an anonymous informer (or citizen informer) claims to have seen Cannabis plants on a suspect's property the police must present information showing that the tipster has the ability to identify Cannabis or marijuana. Since many anonymous tipsters aren't aware of this rule, they often fail to state the basis of their identification when they leave a message on a recorded tip-line. In such sasses, the police must themselves investigate the tip in an attempt to verify the tipster's identification of the supposed Cannabis plants. Failure to present such evidence in the application for the search warrant can make the search warrant invalid.

In one recent case in Idaho, for example, the police received an anonymous telephone call in which the caller reported seeing Cannabis plants growing in an outbuilding on the neighbor's property. The caller also said that the lights were always on in the outbuilding. The Idaho Supreme Court held that such information failed to establish probable cause supporting a search warrant for the building because the caller gave no information supporting his or her ability to identify Cannabis plants. The court noted that the search warrant might have been valid if the caller had given a description of the plant so that the magistrate could conclude that the plants were indeed Cannabis. Given the invalid warrant, all the evidence seized when it was executed was thrown out of court. (State v. Joseph son [Idaho 1993] 852 P.2d 1387.)

The Confidential Informant
In 1692, the English parliament enacted the now infamous "Reward Statutes," promising cash rewards, known as "blood money certificates," to people providing the government with information leading to the conviction of criminals. The Reward Statutes were repealed in the mid-1750’s after it was discovered that a group of career informants had framed absolutely innocent people (some of whom were executed!) in order to collect the cash rewards.

Despite such an opprobrious history, information supplied by paid confidential informants is regularly used by today's law enforcement agencies. There are often people who are working in conceit to grow, harvest, transport, and sell marijuana. If a police officer can figure out a way to do it, he will try to use one such person to get incriminating information about one or all of the others. In other words, a confidential informant is someone, often part of formal or informal marijuana distributing chain, which trades information for personal gain. Confidential informants from the "criminal underworld" often have information that would be almost impossible for the police to obtain on their own.

Unlike the citizen informer, who acts out of a motive supposedly unrelated to personal gain, the confidential informant most often acts from a strong self-interest. These people are often paid money for their tips, or, just as commonly, are offered special deals on their own criminal cases in exchange for providing the police with incriminating information about someone else.

As we should have learned from the Reward Statutes of several centuries ago, the obvious problem with relying on the information supplied by confidential informants is that they may falsely accuse an innocent person in order to get whatever reward they are offered. The Supreme Court has therefore held that the police must try to verify the reliability and accuracy of information supplied by confidential informants. In other words, information supplied by a confidential informant is not presumed reliable. However, if an officer has used a particular informant in the past, and that informant has a record of providing accurate information, then the confidential informant will be presumed reliable just like a citizen informer.

Paid Confidential Informants and Conduct by the Government
Occasionally, a specific operation or payment plan involving a confidential informer will strike a court as so outrageous as to violate due process. Reversals for outrageous governmental conduct in this context are very rare however. For example, courts have held that it was not outrageous conduct for the government to get an 18-year old drug rehabilitation patient to deal drugs, and it was also not outrageous for the government to purposefully introduce drugs into a prison in order to map the distribution network inside the prison.

What kind of government conduct with regard to paid informers is considered "outrageous?" Unfortunately, the term is not well-defined by the courts, which tend to describe the offending conduct vaguely as "fundamentally unfair," "shocking to the universal sense of justice," or "transgressing fundamental principles traditionally protected by our society."

The Ninth Circuit reversed the conviction of Bourne Thomas after finding that the DBA paid an informant in the case on a contingent basis and that the informant had played a central role in orchestrating the crime. Over the course of several months the informant had arranged to purchase drugs through the help of an initially reluctant Mr. Thomas. In fact, Mr. Thomas was not even going to make any money from the deal. The informant completely arranged the transaction and Mr. Thomas was arrested when it occurred. He was subsequently convicted and sentenced to 121 months in federal prison.

The Ninth Circuit found the government's conduct in employing the informant on a contingent fee basis in a sting operation to be so outrageous as to violate the Due Process Clause. For that reason, the court reversed Mr. Thomas's conviction. The Ninth Circuit pointed out that under the informant's agreement with the DBA, the amount of money he would be paid was dependent on several factors, including: (1) whether Mr. Thomas was convicted; (2) the amount of drugs involved, and; (3) the value of any assets that were seized. If no conviction resulted, the informant was to receive only minimum wage for his services. (In the course of the trial it was revealed that the informant had "earned" over $50,000 for his services.)

The Ninth Circuit was particularly upset that such a fee agreement was used in a sting operation of the kind employed against Mr. Thomas, explaining:
The inherent danger of basing a paid informant's compensation on the rate of conviction and the quantity of the drugs is exacerbated when the government engages in "sting operations," which accord the government almost exclusive control over the information relating to the criminal activity. The danger is further exacerbated where the party with the financial incentive is the person orchestrating the crime. Unlike cases in which the paid informant merely provides information regarding ongoing criminal activities, in a "sting operation" of this kind the paid informant who structures the crime decides whether or not and at what time there will be witnesses present, which conversations will be recorded, whether to reveal any evidence of the defendant's reluctance to engage in the deal, and the like. Complete control over the "crime" makes "sting operations" an efficient law enforcement technique. However, this same feature creates enormous potential for abuse. When, as here, "sting operations" are combined with contingency fees designed to maximize the conviction rate and the amount of drugs, it is likely that this potential will become actual.

At a minimum, the Due Process Clause protects against the conviction of individuals on the basis of evidence that has such a high risk of being false. (U.S. v. Thomas [9th Cir. 1994] 32 F2d 418.)