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CONSTITUTIONAL LAW BASICS

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .
—Fourth Amendment

YOUR RIGHT TO BE FREE from unreasonable governmental searches and seizures by government agents is guaranteed by the Fourth Amendment to the United States Constitution. There is no hard and fast definition of the word "search." However, generally speaking, a search occurs whenever a government agent (such as a police officer) accesses an area in which you have a reasonable expectation of privacy. In the words of the Supreme Court, a "search" occurs when an agent of the government "compromises the individual interest in privacy." These facts about Marijuana can affect the most important part of your life: your freedom.

Most courts apply a two-part test to determine whether or not a police officer's action constituted a "search" under the Fourth Amendment. First, the court will examine whether the individual who claims he was "searched" has "exhibited an actual (subjective) expectation of privacy." The court will look to see what efforts the person took to preserve the privacy of an area or item. Second, the court will examine whether the person's expectation of privacy is "one that society is prepared to recognize as reasonable." In other words, even if a person has shown a subjective expectation of privacy, a court will not give Constitutional protection to the person's expectation if an average person would find the expectation unreasonable. More will be said about this in the chapters to come.

A "seizure" occurs when a government agent either takes something that you possess or in some way severely restrains your freedom or liberty. Using the words of the Supreme Court: a "seizure" occurs when an agent of the government "deprives the individual of dominion over his or her person or property." In other words, not only can an officer seize your property, but he can also seize you. As will be explained in the next chapter, the law calls an officer's seizure of a person either a "detention" or an "arrest."

The most important question to ask when analyzing the legality of a search or seizure is: "was it reasonable?" Reread the above clause from the Fourth Amendment, and you'll see that it protects you only against unreasonable searches and seizures. Therefore, only those searches that a court determines are unreasonable are unconstitutional.

The Exclusionary Rule
If a court decides that a police officer's search or seizure was illegal (i.e., unreasonable), then whatever the officer saw or seized will not be admissible in court as evidence. This is known as the "exclusionary rule," and its purpose is to deter police officers from making illegal searches and seizures. For example, if an officer illegally searches your car and finds 100 pounds of marijuana, the exclusionary rule will prevent the prosecutor from introducing the marijuana in court. Usually this will result in the dismissal of your case for lack of evidence, despite the fact that you were found with 100 pounds of marijuana. (Of course, you don't get the marijuana back!)

It may seem strange to let unquestionably guilty people go free, but this turns out to be the only effective way of forcing police officers to comply with the Fourth Amendment. In fact, even with the exclusionary rule, police officers are still motivated to conduct illegal searches and seizures because, although the evidence will be excluded from court, the police have confiscated the marijuana and forced the person to undergo the stress and embarrassment of being arrested and charged with a crime. Plus, the person will have to pay a high-priced lawyer to argue that the search and seizure was illegal and there's still no guarantee that the judge will agree.

One very important aspect of the exclusionary rule is that the rule applies only when a government agent's illegal search or seizure has violated your reasonable expectation of privacy. The United States Supreme Court has held that Fourth Amendment rights are of a personal nature. In other words, even if a police officer has made a clearly illegal search that turned up incriminating evidence against you, you will be unable to assert the exclusionary rule if the officer obtained the incriminating evidence against you by searching another person or another person' s property in which you had no reasonable expectation of privacy. Simply put,>'0« must have been the victim of the police officer's search in order for the exclusionary rule to apply. For example, police officers in Georgia caught Stephen Karlovich tending a Cannabis garden on some property owned by his friend Thomas. Stephen argued that the officers discovered the Cannabis garden, as well as his presence there, only by conducting an illegal search. However, the court refused to hear his argument, finding that the officers entered Thomas's property, not Stephen's. The court held that, even if the officers' search was illegal, Stephen had no Constitutional protection because he had no reasonable expectation of privacy on Thomas's land.
A counterpart to the exclusionary rule is what's known as the doctrine of the "fruit of the poisonous tree." Under this doctrine, not only is the evidence directly obtained by the illegal search or seizure excluded, but so is any evidence obtained indirectly as a result of such a search or seizure. For example, in one case the police illegally searched a man's home and found numerous Cannabis plants. After the search, the police arrested the man and took him to jail. At the jail, the man confessed that he had been growing cannabis (growing marijuana) and selling marijuana for the last three years, ever since losing his job.
The court that heard the man's case held that, because the Cannabis plants and Cannabis seeds were obtained through an illegal search, they must be excluded from evidence. In addition, the court also excluded the man's subsequent confession, because it was obtained after the police made the illegal search and as a result of the illegal search. Consequently, although the police found Cannabis plants and Cannabis seeds in the man's home and obtained the man's confession, after the exclusionary rule and the fruit-of-the-poisonous-tree doctrines were applied, no admissable evidence remained. Therefore, the man's case was dismissed for lack of evidence.

The "Good Faith Exception" to the Exclusionary Rule
As you are probably aware, anytime a court applies the exclusionary rule and suppresses illegally seized evidence, law enforcement agencies scream about how a guilty person was allowed to go free because of a "technicality." The popular press, probably for lack of understanding or perhaps to sensationalize a story,often reports on such cases by painting the officer's constitutional violation as a trivial technicality. Many people bristle at the idea of a guilty person going free because a police officer "made a mistake."
Perhaps motivated by such popular sentiment, judges have continually attempted to narrow the scope of the exclusionary rule, applying it to fewer and fewer violations by the police. The major limitation on the exclusionary rule was enunciated by the United States Supreme Court in 1984 when it created what is now known as "the good faith exception" to the exclusionary rule.

Under the good faith exception, the exclusionary rule will not be applied to an illegal search if the search was conducted under a valid warrant which is later determined to be invalid. In other words, if a police officer obtains a search warrant and conducts a search pursuant to that warrant, but the warrant is later judged to be invalid because it was not supported by probable cause, the exclusionary rule will not be applied and the seized evidence will be admitted despite the fact that it was seized under an unconstitutional warrant.

The good faith exception is arguably justifiable since the purpose of the exclusionary rule is to deter police officers from making unconstitutional searches. An officer who obtains a search warrant from a neutral judge and executes it within the bounds of the law was not doing anything wrong, even if the warrant is later determined to have been issued without sufficient probable cause. Consequently, judges reason that applying the exclusionary rule in such circumstances would be unfair to the police officer who conscientiously obtained a warrant he believed was valid.

The Supreme Court, made clear, however, that there are four instances in which a police officer's reliance on a valid search warrant does not support the good faith exception, and hence should still result in exclusion of the evidence:
(1) The judge that issued the warrant was biased in some way.
(2) The officer knowingly included false statements in the search warrant affidavit, or included statements with a reckless disregard for the truth.
(3) A reasonably well-trained officer would have known that the warrant was defective by its failure to specifically describe the place to be searched or the things to be seized.
(4) The warrant was based on an affidavit that was so defective that a reasonably well-trained officer would have known that it failed to state probable cause.

In any case involving one or more of the above four factors, the good faith exception should not apply since in those situations the officer is again at fault and should be punished in some way. As you can see, however, these four factors leave considerable leeway, which is often exploited by courts to uphold the validity of a questionable search. In all but the most extreme cases, therefore, courts will apply the good faith exception even if the warrant is later determined to be defective. In practice this means that if an officer obtains a search warrant, the exclusionary rule will seldom be applied, and hence, any evidence seized under the warrant will almost always make its way into court.

Outrageous Police Conduct Can Invalidate a Search
Occasionally, in their zeal to rid the world of Cannabis and incarcerate anyone favorably disposed to it, the police go too far. Outrageous police conduct can cause a court to invalidate an otherwise legal search and seizure.

In a recent New York case, for example, the DEA, as the result of a lawful wiretap, learned that Mr. Henry was about to make a drug delivery. They staked-out his house and saw him load a large cardboard box into the back of his vehicle and drive away. According to the court's opinion, the agents "followed him into the Bronx where they stopped him on the Henry Hudson parkway with machine guns and handguns drawn, despite no apparent reason to believe defendant was armed. Defendant was forcibly removed from his vehicle, handcuffed and told to lie face down on the ground. A search of the vehicle yielded a leather shoulder bag on the front seat, containing a small quantity of marijuana and $70,000 in cash in small denominations .... The cardboard box in the rear was found to contain ten plastic bags of marihuana, weighing approximately one pound each. All of these items were seized." Mr. Henry was subsequently convicted of possessing marijuana and sentenced to five years probation.

Mr. Henry's conviction was reversed on appeal. The court of appeal was appalled at the strong-arm methods used by the DBA, explaining that "the requirement that searches and seizures be reasonable limits the police use of unnecessarily frightening or offensive methods of investigation." Here, the DEA's use of machine guns unnecessarily and callously threatened Mr. Henry with the immediate use of deadly force. The court explained that, "the irresponsibly forceful nature of this stop and search, on a highway in full view of passing motorists, was anything but harmless. It presented the possibility of danger not only to this unarmed defendant, but also to innocent passersby.... The manner in which the stop and search were carried out is as much a part of that search as any otherelement. The overly intrusive nature of this law enforcement action requires us to suppress all the evidence so acquired." (People v. Henry [1992] 591 NY.S.2d 1018.)

Rights Depend on Who Conducts the Search
Constitutional rights provide protection only against actions by the government (federal or state) or its agents (the most obvious of which are police officers). There is no constitutional protection against unreasonable searches by private persons. This rule comes as a great surprise to many people without any legal training, and it is crucial to understand its effect.

Suppose a private citizen who is an anti-marijuana crusader suspects you of marijuana use. What if that person illegally breaks into your home, steals some of your marijuana, and gives it to the police? There are actual cases of this happening, and the answer is always the same. The marijuana turned over to the police will form the basis for a search warrant for your home. If a police officer's search under that warrant then turns up evidence of marijuana, you will be arrested despite the illegality of your neighbor's action. In addition, neither the exclusionary rule nor the fruit-of-the-poisonous-tree doctrine applies to searches or seizures by private people, and hence the marijuana removed by the thief will also be used against you in court. It does not matter that the person obtained the marijuana illegally by breaking into your home. (Of course, you can press criminal charges against your neighbor based on his illegal entry of your home, but that won't help you defend against the marijuana charge.)

Note, however, that the rule is different if the police arranged the break-in. In that case, a court would consider the private citizen an agent of the government; so the person's search of your home, and seizure of your marijuana, would be just as illegal as a police officer's. As a result, in such a situation the exclusionary rule would apply, and the marijuana found by the private person as well as the marijuana found during the execution of the search warrant would be excluded from evidence. Simply put, a private citizen who is working for the police is subject to the Fourth Amendment constraints and the exclusionary rule.

The Hotel-Maid Example
Bill was driving from Los Angeles to San Francisco but became tired as he approached Santa Barbara. Upon reaching Santa Barbara, Bill stopped and rented a motel room. Inside his room, Bill rolled a joint and smoked it while watching Dragnet. The next morning, Bill woke up and went out to get a bite to eat.

As Bill ate breakfast, he was unaware that a hotel maid was cleaning his room. The maid discovered Bill's personal stash of pot as well as the partially smoked joint. She rushed to the police with the marijuana, reporting that she found it while cleaning Bill's room. The police quickly obtained a search warrant and, upon searching Bill's room, discovered additional evidence that Bill was transporting marijuana. Bill was subsequently convicted of the crime of transporting marijuana.
In this example, the maid is not a government agent and hence is not limited by the Fourth Amendment. Therefore, even if she was in Bill's room without his permission, or digging through his belongings without his permission, her testimony on what she found in his room will be admissible in court. In this situation the exclusionary rule is inapplicable. Likewise, the search warrant is clearly valid, despite the fact it was based on the maid's theft of Bill's marijuana.

If Bill had been acting more cautiously and had understood the limits on the Fourth Amendment he would have removed all evidence of marijuana from his hotel room prior to leaving. Court cases indicate that the safest place for such items would have been in a closed opaque container locked in the trunk or glove box of his car.

Sending Marijuana Through Private Mail Carriers Because the Fourth Amendment does not constrain searches by non-government agents, any packages sent through a private mail carrier, such as Federal Express or UPS, are subject to warrantless searches by the carrier's personnel,for any or no reason at all. In practice, private mail carriers have better things to do than dig through mail looking for drugs; therefore, such searches usually occur only when there is some indication that the package may contain drugs. In such cases, the carrier will usually notify the DBA or local law enforcement.

If a private carrier, like FedEx or UPS, notifies the DBA or a local police agency that they found a package believed to contain marijuana, the agency will send an agent to examine the package. There are many cases discussing the extent to which the law-enforcement agent can conduct a warrantless search of such a package. The rule that has evolved from these cases is that the law-enforcement agent must limit his warrantless search of the package to that already performed by the private carrier. The courts have reasoned that a person has no reasonable expectation of privacy in such a limited search, because the contents viewed by the private carrier are now public.

In the Supreme Court's words:
Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now non-private information: this court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed. The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. (US v. Jacobsen [1984] 466 US 109.)

If the law-enforcement agent wants to go further than the search conducted >y the private carrier, the agent must obtain a search warrant.

In a 1993 Georgia case, Ms. Hyatt was convicted of several marijuana rffenses after Federal Express employees inspected two wooden crates and found hat they contained marijuana. They called in DBA agents who made controlled leliveries of the crates, one of which was accepted by Ms. Hyatt.

In her appeal, Ms. Hyatt argued that the Federal Express employees violated he Fourth Amendment by searching the wooden crates without a warrant and vithout probable cause to believe that they contained contraband. However, ipplying the rule just discussed, the Georgia court of appeal rejected Ms. Hyatt's irgument. The court explained:
The Fourth Amendment did not apply due to the private character of the search of the crates. There was no evidence that the crates were opened through the intervention or direction of law enforcement officers. Various law enforcement agencies became involved only after the corporate employees discovered the contraband and called an agent of the drug enforcement administration. The subsequent inspection of the contraband by law enforcement officers did not exceed the scope of the private search, and therefore did not amount to a violation of the Fourth Amendment. (Hyatt v. State [GAApp. 1993]436S.E.2d541.)

State Constitutions vs. The Federal Constitution
Under our federalist system, there is a federal Constitution as well as fifty separate and distinct state Constitutions. State Constitutions may guarantee greater (but not less) individual liberties than those guaranteed by the federal Constitution. In fact, many state Supreme Courts have interpreted their state Constitutions to afford more expansive protection to the fundamental rights of their citizens particularly in the area of searches and seizures. A number of state Supreme Courts, for example, have held that a warrantless search of a citizen's garbage violates the state Constitution despite the fact that the United States Supreme Court has held that such searches do not violate the federal Constitution.

Double Jeopardy
Under the Double Jeopardy clause of the Fifth Amendment, the government is barred from bringing a second prosecution for the same offense following an earlier acquittal or conviction. As explained by the United States Supreme Court, "the basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts." (Abate v. United States [1959] 359 US 187.)

Under the Double Jeopardy clause, it is clear that the government is prevented from retrying a defendant after a jury has acquitted that defendant of the offense. In other words, if a defendant in a marijuana case wins at trial, by getting a jury to unanimously find him not guilty, the case is forever closed and the government is not permitted a second chance.

In many cases, however, the jury is unable to unanimously agree whether the defendant was guilty or not guilty. When one or more jurors cannot reach a decision as to guilt, the jury is said to be "hung." Because a "hung jury" is neither an acquittal nor a conviction, the Double Jeopardy clause does not bar a subsequent trial. Consequently, in any criminal case where the jury is unable to reach a unanimous decision, the government is free to prosecute the defendant again and again until a jury unanimously decides one way or the other.

A major exception to the double jeopardy rule is known as the doctrine of "separate sovereigns." Essentially, because of our federalist system, there are both federal laws and state laws. If a person commits a crime that violates only a state law, only the state can prosecute that person. If a person commits a crime that violates only a federal law, only the federal government can prosecute that person. It stands to follow that if a person commits a crime that violates both a state and federal law, both the state and federal government can prosecute that person in separate proceedings. Because each governmental power has an interest in enforcing its laws, the doctrine of separate sovereigns was created.

Constitutional Law Basics
Under this doctrine, if you break a state law and a federal law in the same act, you can be prosecuted by either or both the state or federal government. A win in either forum is no bar to a subsequent prosecution in the other. The state and subsequent federal trials of the officers who beat Rodney King were a good example of this doctrine in action.
The Burden of Proof
Because of the severe consequences which can result from being convicted of a criminal offense, our legal system requires proof beyond a reasonable doubt in order to convict a person of a crime.

In theory, a judge or jury can convict a person of a marijuana crime only if it finds, beyond a reasonable doubt, that the person committed each and every element of the crime charged, (as discussed in Chapter One, all crimes are composed of "elements," and each element must be proven in order to find the defendant guilty of the crime.) In other words, if the judge or jury has any reasonable doubt concerning even one of the elements of the crime charged they cannot convict the defendant.

The definition of a "reasonable doubt" is explained in the instruction that the jury hears before it enters the jury room to decide upon its verdict. Unfortunately, for such an important principle, "reasonable doubt" is very poorly defined. In California, for example, the jury is instructed:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the people the burden of proving him guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows: it is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. (CALJIC 2.90)

The outcome in Dorothy Jackson's case is illustrative of the stringency of the "beyond a reasonable doubt" standard when properly applied. One day, Ms. Jackson was in her apartment when she heard a knock at her front door. Upon opening the door she was greeted by several police officers with a search warrant. Ms. Jackson, who happened to be carrying her purse at the time, stepped aside to allow the officers to enter. Then, without warning, she darted into her bathroom and locked the bathroom door.

One of the officers ran after her, pounded on the bathroom door and ordered her to open it. After a short hesitation, Ms. Jackson opened the door and was quickly handcuffed.
The officers searched her home pursuant to the search warrant but were unable to find any marijuana. However, as they searched the bathroom, one officer noticed that the bathtub appeared to have fresh footprints on its rim directly below an open window high on the wall. Suspecting that Ms. Jackson stood on the tub and tossed her marijuana out the window, the officer ran downstairs to see what he could find. Just as he suspected, among the debris below ms. Jackson's bathroom window he found a baggie containing marijuana. In addition, the baggie was dry whereas all the other debris in the area was wet from some earlier rains. All the evidence seemed to show that the marijuana had been tossed out of the bathroom window by Ms. Jackson.

When Ms. Jackson's case went to trial, her lawyer attempted to raise a reasonable doubt in the minds of the jury. He pointed out that as many as seven other apartments had windows located above the area where the marijuana-filled baggie was found. Additionally, he noted that it had not rained for two days, and hence, the baggie could have been deposited on the ground any time within the two days preceding ms. Jackson's arrest.

Although the jury rejected her lawyer's arguments and convicted ms. Jackson for possession of the marijuana, the conviction was reversed on appeal. The appellate court reversed her conviction after determining that, given the facts, it was impossible for a juror not to have a reasonable doubt that Ms. Jackson had possessed the marijuana. The officers never saw her with the baggie, and hence the jury could not possibly have found she actually possessed the baggie. Likewise, because the marijuana was not found inside her apartment, but rather outside, in a public place, the evidence was insufficient to prove that she exercised dominion and control over the marijuana. Therefore, the appellate court reversed Ms. Jackson's conviction, finding that a reasonable doubt did exist. (People v. Jackson [1962] 178 N.E.2d 320.)

The Jury's Power to Judge the Law
In a criminal case, the judge and jury have very separate and distinct roles. Once a trial in a marijuana case begins, it is the jury, not the judge, that holds the greatest power, and in whose hands a conviction will either stand or fall. Essentially, the judge's sole duties are to rule on the admissibility of evidence, and to instruct the jury on the laws relevant to the case. In contrast to the legal focus of the judge's role, the jury is charged with: (1) determining the facts, and then (2) applying those facts to the law as given to them by the judge. The above duties and responsibilities are spelled out to the jury at the beginning of every marijuana case. What the jury is not told (except in Indiana and Maryland), and in fact what is vehemently hidden from them, is the fact that they—the jury—have a longstanding and well established right to judge the law itself.

It is now fairly well-documented that in decades past government efforts at excessive social control via criminal laws were hampered by juries refusing to convict people charged under unjust criminal laws. For example, during the alcohol prohibition era in the 1920s and early 1930s, prosecutors had a very hard time gaining convictions for alcohol-related crimes because many jurors believed that alcohol prohibition was unjust and simply refused to convict those accused of alcohol trafficking. They judged the law itself, and found it unjust. In fact, the low rate of conviction was clearly a factor leading to the repeal of Prohibition. Similar circumstances helped end the fugitive slave law, when juries refused to convict people assisting runaway slaves.

The right of a jury to "nullify" a law is recognized in numerous court opinions. In fact, this power was itself purposefully created to give the citizenry the ability to combat tyranny by rejecting unconscionable laws similar to those currently outlawing marijuana. For example, the Fourth Circuit has written:

If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence .... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. (United States v. Moylan [4th Cir. 1969] 417 F2d 1002.)
Despite this concession, the Fourth Circuit has nevertheless concluded that the jury should nor be told of its power to completely reject the law. To do so, said the court, "would be negating the rule of law in favor of the rule of lawlessness."
Therefore, if you are ever called as a juror in a marijuana case, you should know that you have a right to vote "not guilty" even if you believe the defendant committed the alleged marijuana crime. You can judge the law itself and refuse to lend your assistance to its implementation. As mentioned earlier, a single juror voting "not guilty" is all that is required for a hung jury. You cannot be punished for exercising this power and refusing to convict the defendant of a marijuana crime you believe is unjust. Remember, however, that although this right is well established, courts won't tell you about it. It is also considered misconduct for an attorney to bluntly inform the jurors of their power. Therefore, if you are the defendant in a marijuana case, all you can do is hope that someone on the jury knows of this power and has the courage to exercise his or her power.

A national organization known as the Fully Informed Jury Association is currently fighting for laws that would require judges to inform juries that they have the power to judge both the facts and the law. Tell your friends about their right to nullify laws as a jurors. If juries won't convict in marijuana cases, perhaps the anti-marijuana laws will go the way of Prohibition and the fugitive slave laws.

Know your rights, whether it is medical marijuana facts or growing cannabis seeds. The law can be used to protect your constitutional rights. Get the right facts about Marijuana (facts that might determine whether you spend time in jail).