Controlled Buys
Rather than use an undercover police officer to purchase marijuana, law
enforcement agencies often find it easier to use a paid informant to make
a purchase. Such an informant is often a person who is already connected
to the "marijuana underground," and who is quietly arrested
one night. The prosecutor then "persuades" this person that
he should help the officers in exchange for a dismissal of his charges
or a lesser punishment than would ordinarily be expected. If the person
agrees, the police have a multitude of options.
Often, informants are used to make "controlled buys" of marijuana.
In the typical controlled buy, officers search the informant to ensure
that he has no marijuana on him, and then give him some marked money.
The informant is then instructed to go to his dealer and purchase as much
marijuana as possible. Some officers usually park outside the suspect's
home in an undercover car and observe the informant as he enters the seller's
home. In high-risk buys (those involving a very large transaction or the
possibility of violence), an undercover officer will often accompany the
informant, posing as his friend. If the informant successfully completes
a purchase, the police obtain a search warrant for the seller's home and
raid it as soon as possible.
Undercover Cops and the Doctrine of "Misplaced Trust"
In addition to citizen informers and confidential informants, law-enforcement
agencies collect information by conducting their own undercover operations.
Undercover narcotics officers, commonly called "narks," weasel
their way into groups suspected of marijuana use, and attempt to gain
information that will later be used in criminal prosecutions.
In order to facilitate the work of undercover police officers and confidential
informants, the courts have developed what is known as the "doctrine
of misplaced trust." Under this doctrine, there is no Fourth-Amendment
protection when a person unwittingly invites an undercover officer or
informant into his home under the mistaken belief that the person is really
a fellow marijuana user, grower, or trafficker. As the Supreme Court puts
it: "it is well settled that when an individual reveals private information
to another, he assumes the risk that his confidant will reveal that information
to the authorities, and if that occurs the Fourth Amendment does not prohibit
the governmental use of that information." In other words, the courts
universally conclude that individuals take the risk, in all their dealings
that their trust may be betrayed whenever they voluntarily speak with
another person. Such rules not only debase individual liberties, but even
more fundamentally undermine, in the words of Justice Harlan, a "sense
of security in dealing with one another that is characteristic of individual
relationships between citizens in a free society." (US v. White [1970]
401 U.S. 745, assenting opinion of. Harlan.)
In one case, Lewis invited a new friend into his home, not knowing that
the arson was an undercover federal narcotics agent. Lewis spoke freely
with his we friend and even sold him marijuana on two occasions. When
Lewis was rrested, he argued that the agent's actions were a violation
of his right to privacy, nod that he never knowingly consented to the
agent's warrant less entry of his home.
The United States Supreme Court rejected Lewis' argument. The Court explained
that whenever someone invites a guest into his home, he takes the risk
tm the guest will observe whatever is in plain view, and may divulge to
the authorities what is seen. Likewise, the person has no assurances that
the guest font’s go out and repeat or report what was talked about
inside. It makes no difference, says the Supreme Court, that the guest
is really an undercover government agent.
As the Ninth Circuit stated, in a case where it upheld a federal agent's
ploy f acting like a stranded motorist to gain invitation into a home:
An officer may legitimately obtain an invitation into a home by misrepresenting
his identity...if he is invited in he does not need a warrant, and, quite
obviously, he does not need to announce his authority and purpose. Once
inside the house, he cannot exceed the scope of his invitation by ransacking
the house generally, but he may seize anything in plain view. (U.S. v.
Wright [8th Cir. 1981] 641 F.2d 602.)
The cases indicate that police officers are happy to take advantage of
any kindness commonly found among marijuana users. In fact, federal law
enforcement agents are taught deceptive techniques for gaining entrance
into homes by •icing the owner into consenting to the entry.
The FBI Law Enforcement Bulletin for January 1994 included an article
on lies very subject, bluntly titled "Obtaining Consent to Enter
by Deception." In lat article agents were taught numerous tricks
including: "the Loyal Friend )exception" (where your friend,
who is actually a police informant, gains entry by citing like he's your
friend); "the Fellow Criminal Deception" (where a marijuana
buyer, who is actually an undercover officer, knocks on your door and
skis to come in so he can buy some marijuana); and "the Mundane or
Ordinary 'visitor Deception" (where a UPS delivery person, who is
actually an undercover olive officer, brings you a package and asks to
come inside on the guise of deceiving payment for a COD delivery).
After detailing these tricks, the article took special efforts to make
clear that many techniques are especially helpful when there is not sufficient
evidence gains the person to establish probable cause for a warrant:
Obtaining consent to enter through deception is an extremely useful law
enforcement tool in certain circumstances, particularly when acquiring
a search warrant is not possible because of insufficient facts for establishing
probable cause.
What does this mean? It means that these deceptive techniques are employed
in the very situations in which a court would ordinarily not permit a
search! Needless to say, many innocent people must be subjected to such
deceptions, never learning that their mundane visitor was actually an
undercover government agent.
Another ploy is to pose as a stranded motorist who comes to your house
asking if he can come in and use your phone. For example, in one 1993
case in Montana, the police received information from an informant that
a man called "Cutter Bob" was growing Cannabis in his home.
Several detectives drove out to "Bob's" home attempting to verify
the information provided by the informant. They confirmed that the home
matched the physical description given by the informant, but from outside
they could detect no evidence of Cannabis cultivation. As explained by
the court, the detectives used the following ruse to check their suspicions:
At approximately 11:30 p .m. Detective Leonard [and two other officers]
of the Gallatin County Drug Task Force drove back to the ... area. Detective
Leonard parked his car on Highway 191 in a spot visible from the defendant's
residence and left the emergency lights flashing. Wearing ski clothing
and posing as a stranded motorist, Detective Leonard approached the residence
while the other two detectives waited out of sight in another vehicle.
When defendant answered the door, Leonard told him that his car had broken
down and asked the defendant if he could use his phone. The defendant
led Leonard through an entry way and into a bedroom area in the main part
of the residence.... Leonard testified that he ... detected the odor of
marijuana smoke in the air. (State v. Holstein [Mont. 1993] 860 P.2d 110.)
The court held that this ruse was perfectly legal under the doctrine
o misplaced trust.
Direct Sales—Undercover Drug Agents—Entrapment
It is routine for narcotics officers to pose as a marijuana users seeking
to purchase marijuana. Their hope is to make a hand-to-hand purchase from
a marijuana seller. Often the seller is arrested immediately after such
a transaction by a uniformed officer who appears out of nowhere. If the
undercover officer has established himself in a particular area, the uniformed
officer will also "arrest" the undercover officer so as not
to blow his cover.
In some cases, however, an arrest is not made immediately after an undercover
buy. Instead, an undercover officer might continue operating for many
months compiling information about more and more people until the operation
culminates with the coordinated arrests of all suspects on a single night.
This technique is commonly used when a young-looking officer goes undercover
in a school.
For obvious reasons it is very difficult to defend a marijuana case where
the police have caught you in a direct sale to an undercover officer.
Entrapment defenses are used very rarely, and are seldom successful. To
argue entrapment, the defendant must admit he bought or sold marijuana,
and for that reason alone, most defense attorneys use an entrapment defense
only as a last resort. After admitting that the transaction occurred,
the defense hinges on convincing a jury that the defendant was not "predisposed"
to commit the crime. To win with an entrapment defense requires showing
that the police practically forced the defendant to commit the crime.
There is no magic test to identify an undercover police officer. All
states have laws that give police officers immunity from prosecution if
they use drugs during an undercover operation. Therefore, the fact that
someone smokes a joint with you does not prove he or she is not an undercover
agent. For practical reasons, however, most undercover officers will not
ingest true psychedelics such as LSD for fear that they might loose control
of themselves and blow their cover. Also, any observations they might
make while under the influence of a psychedelic are open to the possible
attack that such observations were inaccurate or utter hallucinations.
Children as Informers
The children . . . were systematically turned against their parents and
taught to spy on them and report their deviations. The family had become
in effect an extension of the Thought Police. It was a device by means
of which every one could be surrounded night and day by informers who
knew him intimately.
—G. Orwell, Nineteen Eighty-Four
In Oceania of Orwell's Nineteen Eighty-Four, children educated by Big
Brother were issued ear trumpets for listening through keyholes. In our
country in 1994, the hysteria created by the government's "War on
Drugs," has led to many elementary schools including ant drug "education
programs" in their curriculum. The most popular program is "Drug
Abuse Resistance Education," known more commonly by its acronym,
DARE. Currently, the program is conducted in about a quarter of all elementary
schools, reaching over five million students in school year 1991-1992.
The program instructors, who are almost all police officers (as of 1991
over 10,000 law enforcement officers had been trained to teach DARE),
teach students that illegal drugs are very bad and that using them makes
you a bad person. In addition to the general vilification of all illegal
drugs, the officers ask students if they know anyone who uses drugs. Although
the program states that no names are used in class discussions, DARE students
have later confided in an officer that their parents or siblings smoke
marijuana. For example, in one case in Colorado, a ten-year-old boy called
the police to report that his parents smoked marijuana. He identified
himself as "a DARE kid."
In another case, Mary, a fifth-grader in Maine, visited the police station
following a DARE class and informed them that she knew two people who
smoked marijuana: her parents. The police questioned Mary for nearly an
hour, and then used her information to obtain a search warrant for her
parents' home. The search uncovered some Cannabis plants growing in her
parents' bedroom. As a result, Mary's parents were arrested and subsequently
convicted of growing marijuana. Mary has required extensive psychological
counseling for feelings of guilt and betrayal.
Mail Orders as Evidence
Many people wonder if it is risky to order equipment from companies advertising
in magazines oriented toward marijuana users. Do law enforcement agencies
monitor these companies? The details of just how much attention these
companies draw from the DBA and other law enforcement agencies are shrouded
in secrecy. What is known for sure, however, is that numerous people have
been arrested and convicted based in part on their interaction with companies
advertising in drug-oriented magazines?
It is known that in 1989 the DEA subpoenaed the records of companies
that advertised hydroponics growing equipment or marijuana-seed catalogs
in High Times magazine. Once the DEA obtained this information, they forwarded
it to local law enforcement agencies across the country.
In one case, the DEA informed the Missouri State Highway Patrol that
Mike had received two shipments of merchandise from Superior Growers Supply,
Inc. The state police officer who was given the information drove by Mike’s
home and verified his address as the one receiving the two shipments.
The officer also noticed that the windows of Mike's home were covered
with blankets. The officer contacted the electric company and learned
that Mike's home used almost four times more electricity than homes of
similar size in his neighborhood.
With this information, the officer prepared an affidavit for a search
warrant to search Mike's house for marijuana. The officer's affidavit
stated:
Superior Growers Supply, Inc. is a company who sells indoor hydrophobic
[sic] growing equipment and grow lights. They advertise in High Times
magazine, a magazine that specializes in marijuana-growing products and
technology, and promotes growing of marijuana and concealment from law
enforcement as well as the legalization of marijuana.
As a law-enforcement officer trained in indoor marijuana-growing operations,
I know that indoor-growing operations use large amounts of electricity
to operate indoor grow lights and hydrophobic [sic] grow equipment. I
also know that blankets are often used to conceal grow lights that are
operated 24 hours a day and to obstruct the view of outsiders. The information
obtained from the Drug Enforcement Administration identifying individuals
who have placed orders with companies such as Superior Growers Supply,
Inc. has resulted in indoor-growing operations being located in eight
of eight cases that I am aware of.
Based on the above information, derived originally from the subpoenaed
records of High Times advertisers, a judge issued a search warrant for
Mike's home. The search uncovered an indoor-growing operation, and Mike
was arrested and convicted.
There are very recent cases showing that the DBA still keeps an eye on
people receiving shipments from such companies. In 1993, for example,
the Third Circuit upheld the conviction of Tab Deanery for possession
with intent to manufacture marijuana in violation of federal law. The
following information was revealed in the court's opinion:
Deanery became a suspect after the DEA learned that he had made mail order
purchases of 244 pounds of supplies from Worms’s way Organic Indoor/Outdoor
Garden Supply ("Worms’s way") between May 1987 and April
1991. Andrei [the investigating DEA agent] related in the affidavit that
he learned "[t]through additional intelligence information"
that Worms way was a supplier of cultivation equipment seized in various
indoor marijuana cultivation operations, and that Worms way was an advertiser
in High Times Magazine, a publication devoted to promoting the growth
and use of marijuana .... Andrei cited a copy of an affidavit written
by another DBA special agent as the source of his knowledge. That affidavit
had been used to obtain a search warrant for Worms’s way in October
1989. Andrei also stated that undercover agents had discussed marijuana
cultivation with Worms way’s owner and at least one of its employees
"on numerous occasions," . . . and that the agents had purchased
equipment from Worms way after telling its owner that the purchase would
be entirely used in marijuana cultivation.
The affidavit went on to say:
[Andrei] reviewed UPS shipping records . . . and they indicated that Deanery
had received five packages from Worms way at regular intervals [over an
eight month period] . . . each weighing two pounds. Because he knew that
marijuana growers must use a large amount of fertilizer over a long period
of time, Andrei said this regular flow of packages from Worms’s
way supported his belief that Deanery was cultivating marijuana. (US v.
Deanery [3rd Cir. 1993] 1 F.3d 192)
In another case in 1993, an opinion from the Supreme Judicial Court of
Maine revealed that Maine's Bureau of Intergovernmental Drug Enforcement
"learned from the federal Drug Enforcement Administration (DBA) that
a confidential source of information had supplied information of suspected
shipments of hydroponics growing equipment used for indoor marijuana cultivation
and marijuana seeds. Information from this source has led to dozens of
arrests of indoor growers of marijuana." (State v. Diamond [Me. 1993]
628 A.2d 1032.)
Likewise in a recent case from the Fifth Circuit, the DBA focused on
Brian Makeover after "Makeover received a shipment of merchandise
from Disco, an outfit engaged in the sale of equipment for use in Hydroponics
gardening, and which advertised in High Times, a magazine that promotes
the cultivation and use of marijuana." (US v. Makeover [5th Cir.
1993] 5 F3d 863.)
Lastly, in a 1994 case, DEA agents and St. Louis, Missouri police began
investigating Joseph Pinson after learning that he "received three
United Parcel Service packages from companies that were known suppliers
of indoor hydroponics growing equipment. These companies were also known
to advertise is High Times magazine, a publication that promotes the cultivation
and use of marijuana." Mr. Pinson was subsequently convicted of manufacturing
marijuana and sentenced to the federal five year mandatory minimum. (SUV.
Pinson [8th Cir. 1994] 24 F 3d 1056.)
Garbage as Evidence
The various items you discard into your garbage actually provide a detailed
record of your life. Your garbage contains evidence of your most private
activities, including what you eat, what you purchase, where you shop,
whether you have sex, and of course, whether you grow or even smoke marijuana.
In fact, one recent federal government publication gives the following
advice to drug enforcement agents attempting to find hidden assets that
might be forfeitable:
In addition to the analysis of mail and telephone records ... the legal
pick-up and careful analysis of your target's trash, at either their residences
or known businesses, should never be overlooked as a potentially important...
source of intelligence. It must be stressed, however, that this must be
accomplished in a totally legal manner to avoid tainting the evidence.
If you are legally able to secure your target's trash, you may well obtain
leads and information.... In addition, you may find notes written by your
target regarding his involvement in some previously undisclosed business
or investment. (US DOJ, Asset Forfeiture, Public Record and Other Information
on Hidden Assets, 2nd in a series, reprinted January 1992,pp. 3-4.)
You might think that, given the clearly personal nature of garbage, the
Supreme Court would have decided that a search warrant is required for
government agents to search your garbage. However, the sad truth is that
the Court has decided just the opposite. In a relatively recent case,
the Court held that any garbage that a person places on the curb for pickup
by his garbage collector can be seized and searched by the police without
a warrant! In fact, the police do not even have to have a reasonable suspicion
that you're involved in criminal activity before they seize your curb-side
garbage. Rather, under the Supreme Court's opinion, a law-enforcement
agent can snoop through your curb-side garbage for any reason whatsoever.
In the case that gave rise to this Supreme Court decision, a police officer
received a tip from an informer that Billy Greenwood was trafficking in
marijuana and other drugs. The officer investigating the tip drove by
Billy's house and observed Billy's garbage on the curb in front of his
house, ready for pickup. The officer suspected that Billy's garbage might
contain evidence that would verify the informer's information. However,
not wanting to tip off Billy by digging through the garbage himself, the
officer contacted Billy's garbage collector, and requested that Billy's
garbage be kept separate from the other garbage and turned over to the
police. The garbage collector followed the officer's order, and upon receiving
Billy's bags of garbage, the officer searched through them without first
obtaining a search warrant.
By sorting through Billy's garbage, the officer found evidence that Billy
was using drugs. This information was used to obtain a search warrant
for Billy's home. When the police executed the search warrant, they discovered
some hashish in Billy's home.
At the trial, Billy's attorney argued that the officer's initial warrant
less search of his client's garbage was unlawful under the United States
Constitution. The attorney argued that Billy had placed his garbage in
a non-see-through bag, and that he therefore had a reasonable expectation
that the contents would remain private. Therefore, his attorney argued,
the Fourth Amendment protected Billy's garbage from a warrant less governmental
search or seizure.
The Supreme Court disagreed. The Court explained that when Billy placed
his garbage bags on the public curb for the garbage collector to take,
he had no reasonable expectation that the contents would remain private.
The Court reasoned that common experience indicates that plastic bags
filled with garbage and left on the street for pickup are often torn open
by dogs and their contents thereby disclosed to everyone. Likewise, such
garbage is often snooped through by children and scavengers. In addition,
the Court noted that Billy placed his garbage on the curb for the very
purpose of turning it over to someone else. For these reasons, the Court
concluded that a person has no reasonable expectation of privacy in the
contents of garbage placed outside for the garbage collector. The Court
concluded that the warrant less seizure and search of Billy's garbage
was legal. (California v. Greenwood [1988] 486 US 35.)
Fortunately, some state Supreme Courts have decided that their state
constitutions protect garbage placed on the curb for pickup even though
the federal constitution may not. The Supreme Courts of New Jersey and
of Washington have interpreted their own state constitutions as giving
greater protection than does the federal constitution and an appellate
court in Indiana made the same ruling under that state's constitution.
In these and perhaps other states, police officers must obtain a search
warrant before searching or seizing garbage.
Note, however, that because the protection in these states stems from
the state constitution, a police officer's warrant less search of your
garbage will be excluded only if you are prosecuted in state court. If
the federal government chooses to prosecute, it is the federal constitution
that will control the case rather than the state constitution. In that
situation, even the state police officer's warrant less search of your
garbage would be deemed legal, as in Billy's case above, and the evidence
used against you in the federal prosecution.
A garbage search was instrumental in leading to the arrest and federal
conviction of Tab Deanery (also discussed in the section on mail-orders),
whom agents suspected was growing Cannabis indoors. During their investigation
of Mr. Deanery on two separate occasions, a DBA special agent "examined
the household refuse" of Mr. Deanery. The agent culled through Mr.
Deanery’s trash and located "marijuana stems and leaves mixed
with soil en both occasions." This almost 1200 kilowatts, and was
often much higher in the summer than in the winter time, contrary to the
normal electric bill in Montana. (State v. Mosley [Mont. 1993] 860 P.2d
69.)
In one recent federal case from the Third Circuit, police were tipped
off by the electric company that there had been "an abnormal consumption
of electricity" at a farm in rural Pennsylvania. The electric company
also informed the police that the doors and windows of the farm house
were covered with dark plastic. Because the electric bill had not been
paid on time, the company cut off service. A Pennsylvania Trooper accompanied
the electric company employee to the farm after the resident paid the
bill and requested the resumption of power. Testimony during the trial
revealed that the trooper "intended to disguise himself as another
utility company employee, if necessary." The electric company's information
subsequently led to the seizure of over 900 Cannabis plants from the property
and a 78 month sentence in federal prison for the grower. (US v.Benish
[3rd Cir. 1993] 5 F.3d 20.)
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