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Vol. 6, No. 35      As Published in the Advance Sheets on August 30, 1999

Highlights of this Issue:

Leading Cases:

Miscellaneous Issues:

U.S.S.G. and Sentencing Issues:

U.S. v. Oakland Cannabis Buyers' Cooperative, Docket No. 98-16950 (9th Cir. 9/13/99) (Per Curiam)

In the eyes of the Government, the Ninth Circuit has often been considered a dangerous, run-away maverick court.  Two years ago, for example, the Supreme Court reversed 27 of the Court's 28 decisions.  The instant decision will not dispel that image.  This time, the Ninth Circuit has tweaked the Government's rigid position on the nation's drug laws.

Last year, in a decision reported at U.S. v. Cannabis Cultivators Club, 5 F.Supp.2d 1086 (N.D.Cal. 1998) (Cannabis I), District Judge Breyer issued an injunction, ordering the marijuana clubs in California to close.  He concluded that the clubs likely violate the Controlled Substances Act, 21 U.S.C. 841(a)(1).  The growing number of marijuana clubs were operating under the authority of Proposition 215, which California voters approved in 1996, and which made marijuana legal for medicinal purposes.  The Department of Justice filed a civil suit to shut those clubs down.  After the injunction was issued, the defendant-cooperative sought to modify the injunction to allow seriously ill people with a doctor's recommendation to purchase marijuana.  Judge Breyer refused to hear any arguments on that "medical necessity" defense, which he described as a common law defense that has been recognized by several states; and a defense which even the Government recognized, although it argued that such a defense "has never been allowed to exempt a defendant from the criminal laws on a blanket basis."  (Cannabis I, id., at 1102).

In this per curiam decision, a three judge panel (Judges Stephen Reinhardt, Mary Schroeder and Barry Silverman) concluded that Judge Breyer "misapprehended the issue. The court was not being asked to ignore the law. It was being asked to take into account a legally cognizable defense that likely would pertain in the circumstances."

It stated that the "medical necessity" defense appeared to be a good one.  "The evidence in the record is sufficient to justify the requested modification. . . . In short, [the defendant cooperative] presented evidence that there is a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects."

The Court also took a jab at the Government's decision to file a civil action, instead of charging people  with crimes, which would require juries to resolve the cases. [It is worth noting that the defendants have long argued that the Government chose the route of a civil injunction in order to resolve the issue on summary judgment and keep it from a jury.] The Court said: "The Government did not need to get an injunction to enforce the federal marijuana laws.  If it wanted to, it could have proceeded in the usual way, by arresting and prosecuting those it believed had committed a crime."

Finally, without ever specifically referring to Proposition 215, the Court added that the failure of Judge Breyer to consider "the public interest" was an abuse of discretion.  The defendant-cooperative "has  identified a strong public interest in the availability of a doctor-prescribed treatment that would help ameliorate the condition and relieve the pain and suffering of a large group of persons with serious or fatal illnesses. Indeed, the City of Oakland has declared a public health emergency in response to the district court's refusal to grant the modification under appeal here."

In the end, the panel instructed Judge Breyer to hear the defendant-cooperative's medical defense necessity; and, to assure that the Government would not seek an end-run around the panel, it ruled that it would handle all subsequent appeals in the case.  If left to stand, the ruling will probably allow the marijuana clubs in California to reopen; but we feel it is certain to be appealed.

United States v. Kyllo, Docket No. 96-30333 (9th Cir. 9/9/99) (Judge Hawkins)

This is one of those cases which shows that constitutional principles often depend on the make-up of the court.  We first discussed this case in the 6/15/98 issue of P&J, where we noted that a divided panel of the Ninth Circuit held that a warrantless search by using a thermal image scanning device violated the Fourth Amendment.  (U.S. v. Kyllo, 140 F.3d 1249 (9th Cir. 1998).  The Government requested a rehearing, and its request was aided by the fact that the author of the previous decision, visiting District Judge Merhige of the Eastern District of Virginia, was no longer around.  He was replaced by Circuit Judge Brunetti, who now joined with Judge Hawkins (who dissented in the original decision) to form a new majority; and this time Judge Noonan, who concurred in the original decision, dissented.

The reconstituted majority concluded that a thermal scan of the exterior of the defendant's home, which revealed "hot spots" on the roof and one wall, was not really a search for purposes of the Fourth Amendment, and thus no warrant was required for the scan and the information revealed by the scan was properly considered by the magistrate judge in determining whether there was probable cause for the search of the defendant's home.

A Federal agent suspected that the defendant was involved in growing marijuana, and he arranged to have the defendant's home scanned with a thermal imaging device.  When that scan showed abnormally high "heat loss", the agent inferred that the defendant was using high intensity lights to help the cultivation of indoor marijuana plants.  He included the information from the scan in a warrant application; and it was granted.  The resulting search revealed more than 100 marijuana plants growing inside the house.

The earlier majority opinion placed considerable emphasis on the intrusive capabilities of thermal imaging technology and the increasing abilities of that technology to show more and more detail.  This time the majority declared that "[w]hatever the Star Wars' capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing."  It added that "while this technology may, in other circumstances, be or become advanced to the point that its use will step over the edge from permissible non-intrusive observation into impermissible warrantless search[es], we find no violation of the Fourth Amendment" on the facts of this case.

In his dissent, Judge Noonan commented that the imager's inability to reveal much detail, which the majority stressed in finding that there was no intrusion "hurts the government by underscoring the unreliability" of thermal image scanners.  (For more on the evils of thermal imaging searches, see the Quote of the Week, below).

United States v. Payne, 181 F.3d 781 (6th Cir. 1999) (Judge Moore)

In this case the Court held that evidence obtained by a parole officer in violation of the Fourth Amendment must be suppressed in a subsequent criminal proceeding.  The defendant was paroled from a Kentucky prison in 1994.  Because of an extensive criminal history, he was placed under the maximum level of parole supervision, which meant that he was required to have two office visits and one home visit with his parole officer each month; he was subject to a curfew and to random drug testing; and he was required to sign a statement in which he agreed that he was subject to a search and seizure if his probation officer had reasonable suspicion that he had contraband on his person or property.

After his initial visit with his parole officer, he failed to report to any more meetings; and he soon moved to a different county.  Later, a State detective received an anonymous tip that the defendant had a large quantity of methamphetamine stored in his truck; but he was unable to gather any additional evidence to help establish probable cause.  So he contacted the parole department to elicit its help in effecting a search.  Some six weeks later, a group of six police and parole officers went to the site where the defendant's estranged wife was living in a trailer; and they found the defendant's truck parked in front.  Although they had no search warrant, they knocked on the door of the trailer and, hearing a noise, they conducted a "protective sweep" of the trailer and found the defendant and arrested him.  The parole officers, believing that they had the right to conduct searches of a parolee's home at any time, then proceeded to conduct a "plain view search" of the trailer.  They discovered a marijuana cigarette, some shotgun shells, and a black case that contained some digital scales.

Eventually, "in exchange for permission for her children to use the bathroom," the estranged wife turned over to the police some cash, a handgun, and some methamphetamine.  The police then secured a search warrant and, while conducting a full search of the trailer, they discovered additional weapons and drug paraphernalia.

The defendant was ultimately charged with possession of methamphetamine with intent to distribute, possession of marijuana, and being a felon in possession of firearms.  He moved to suppress the evidence seized from his estranged wife's trailer; and, when that motion was denied, he was convicted and sentenced to 264 months in prison.  On appeal, a majority of the panel reversed, holding that the police had no reasonable suspicion to conduct the search in the first instance, and that the fruits of the illegal search should have been suppressed.

The Court did acknowledge that "[i]n the context of the special needs of the parole system, the presence of a reasonable regulatory scheme can make a search upon less than probable cause reasonable' for the purposes of the Fourth Amendment."  (Id., at 787).  Nevertheless, it held that the tip that led to the search in this case "lacked any of the traditional indicia of reliability . . .  and it was stale.  It was clearly insufficient to create reasonable suspicion."  (Id., at 789).

Of particular note, the Court commented on the use of the parole officers to give credence to the search.  The majority wrote: "In this case, the search was conducted primarily by parole officers, whose zone of interest is distinct from, but overlaps with, an interest in enforcing the drug laws.  Although the parole officer is interested in the parolee's rehabilitation, the officer is also charged with monitoring compliance with various restrictions, including restrictions on the use of drugs.  As in this case, parole officers often work closely with the police.  Exempting evidence illegally obtained by a parole officer from the exclusionary rule would greatly increase the temptation to use the parole officer's broad authority to circumvent the Fourth Amendment.  We therefore hold that evidence obtained by a parole officer in violation of the Fourth Amendment must be suppressed in a subsequent criminal proceeding."  (Id., at 788)

QUOTE OF THE WEEK  -  The evils of thermal image scanning devices as seen by one Judge.  

"[T]he fact that the thermal imager issue is now being routinely presented to the courts around the country demonstrates that it is not an issue of the future, but it is an on-going, wide-spread challenge to the privacy rights of America's citizens.  The widespread use of thermal imagers today--even by law enforcement departments of limited financial means--is evidenced by the use of thermal imaging technology by the Sheriff's Department for Laramie County, Wyoming, in this case. . . .

"[I]n some instances the government is using the thermal imager to invade the privacy of innocent by-standers.  The law enforcement "experts" reading the information from the thermal imager use the device against the homes of those who live nearby the criminal suspect to establish a baseline. . . . Using the thermal imager in this manner is inherently nefarious because all of us are susceptible to having the private activities within our homes intruded upon by the government by merely living near one suspected of criminal activity. . . .

[I]f we permit information obtained by thermal imaging to be considered waste, abandoned, or to be characterized as having some other non-protected legal status, then we not only permit unwarranted invasions by the police but analytically destroy civil remedies against privacy invaders such as the paparazzi and tabloid photographers.  Our failure to draw the line at this first and primitive warrantless invasion would make it particularly difficult to protect against the use of "passive" devices of the future that would invade the privacy of our chambers or that would re-create the full range of the activities in our homes by way of computer-assisted images broadcast at the station house, at the newsroom of the local press or television station, or on the Internet.  This modest parade of the horribles is not fanciful:  Any user of the Internet or follower of the news media is aware of the fact that the Brave New World is at hand."  Judge McKay, dissenting in U.S. v. Cusumano, 83 F.3d 1247, 1254 (10th Cir. 1995).

Scorecard of published criminal cases reviewed by our staff this year:

Cases in the Federal Reporter:              This week:     56       Year to date:        1386
Cases in the Federal Supplement:         This week:     11       Year to date:          763

Copyright 1999 Punch and Jurists, Ltd.