DRUG DEFENSE LAWYERS

 (These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense of the Plowshares case.)

Marijuana: Of opportunistic cops and misguided smokers.

By Jon Katz

Marijuana is at once a decriminalized drug and one of the easiest to detect. When smoked, it reeks. However, when unburnt, it is not as easy to detect as police and prosecutors would have us think.

Appellate courts repeatedly have given cops the green light to conduct warrantless searches for marijuana upon smelling it. Defending against such searches calls for attacking the totality of circumstances, including how strong was the odor, from where it emanated, and the officer's personal knowledge of marijuana smell (how on earth can a law-abiding police officer know whether s/he's smelling marijuana or another substance?). It is particularly time to pounce on the search and the officer's credibility when the cop claims to have searched due to marijuana smell but is unable to show any recovery of any remnants of marijuana or marijuana paraphernalia. 

Even though courts repeatedly permit searches based on marijuana odor, countless marijuana users make themselves easy targets for arrest by smoking in their cars (perhaps overlooking that a cop might smell the marijuana upon pulling the car over for speeding or another moving violation), smoking on the streets and in parks, and leaving rolling papers and pipes out in the open. This situation probably has not increased the popularity of hash brownies, cookies and cupcakes as an alternative, even though they carry no burnt marijuana smell. . 

When it comes to growing marijuana indoors, at least the Supreme Court requires a search warrant to use thermal imaging to try to detect the high heat associated with indoor marijuana growing. Kyllo v. U.S., 533 U.S. 27 (2001). Despite Kyllo's reaffirmation that our homes are more protected against searches than cars, legions of potsmokers continue smoking in their cars. 

Important larger points concerning Kyllo are: First, it reverses a Ninth Circuit opinion, which helps debunk outrageous efforts by government lawyers outside that Circuit to paint Ninth Circuit decisions as unreliably radically left (particularly when a substantial number of Ninth Circuit judges are Republican appointees). Second, the opinion is written by Justice Scalia, who is generally accurately seen as being on the Court's right wing (along with Chief Justice Roberts and Justices Thomas and Alito). Conservative Justice Thomas joins the Kyllo majority, along with Justices Souter, Ginsburg and Breyer. Whither Justice Stevens? Mistakenly penning the dissent, joined by the late Chief Justice Rehnquist, Justice Kennedy (now the Supreme Court's generally centrist swing voter), and then-Justice O'Connor. It is a reminder always to go to court knowing that it is possible to persuade anybody to our side. (July 9, 2006).

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