Drugs

Recently during a suppression hearing in a drug case, the police officer testified that controlled dangerous substances fell to the ground from my client's pants as the cop conducted a patdown for weapons, on the cop's claimed belief that this was a valid Terry stop.

During cross examination at the suppression hearing, I asked the cop to show how my client was frisked, by putting me into the role of the client, which gave the judge a good bellylaugh as he proclaimed that I would be responsible for any contraband found during the cop's patdown of me in court. This so-called patdown demonstration revealed the very manipulation that is prohibited with Terry patdowns. The judge later indicated he tended to agree with me that the cop had demonstrated an unlawful Terry patdown, but the judge had concluded that the officer had probable cause to search based on the alleged odor of unburnt marijuana (I join the argument here that unburnt marijuana ordinarily is too hard to distinguish from lawful substances). Probable cause does in fact permit squeezing and sliding of suspected contraband, but a Terry stop does not allow that.

About the limits of a Terry  frisk, in Minnesota v. Dickerson, 508 U.S. 366, 378 (1993), the Supreme Court upheld the suppression of the drugs seized from Mr. Dickerson's pocket, the Supreme Court explained: "Where, as here, 'an officer who is executing a valid search for one item seizes a different item,' this Court rightly 'has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.' Texas v. Brown, 460 U.S. at 748 (STEVENS, J., concurring in judgment). Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to 'the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.' 392 U.S. at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize,  see id at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U.S. at 1049, n.14; Sibron, 392 U.S. at 65-66."  Dickerson, 508 U.S. at 378.

How, then, can a proper Terry frisk -- which is not permitted to involve manipulation, sliding or squeezing -- determine the presence of crack cocaine in one's pocket? If the crack rock is the typical small one-dose size, it sounds particularly farfetched. Nevertheless, in one Virginia criminal case, a police officer claimed to have felt apparent crack cocaine in Mr. Dickerson's pocket during a Terry patdown. The trial judge refused to suppress, and so did Virginia's intermediate appellate court, the Court of Appeals. See Bandy v, Virginia, _ Va. App. _ (August 12, 2008). Something sounds seriously wrong here, and I hope the defense seeks appellate relief. Jon Katz.

As I became more knowledgeable over the years about the marijuana legalization movement, from time to time I would hear about Tod Mikuriya, M.D. As the May 29, 2007, New York Times tells it, Mikuriya "was an architect of Proposition 215, the state ballot measure that in 1996 made it legal for California doctors to recommend marijuana for seriously ill patients. He was also a founder of the California Cannabis Research Medical Group and its offshoot, the Society of Cannabis Clinicians."

The above-referenced New York Times article is Dr. Mikuriya's obituary, one of the many I miss in the course of each year. Only two months earlier, I linked to his webpage supporting the rescheduling of marijuana to make it available for medicinal use. It seems better late than never to sing Dr. Mikuriya's praises after his departure from this planet. His good karma will continue for a long time, and certainly infects me in the most positive of ways. A belated thanks to Tod Mikuriya. Jon Katz.

No stems, no seeds that you don't need,

Acapulco Gold is -- pfffffffffffffffff -- bad-ass weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeed. - Cheech & Chong (listen here).

My introduction to the pro-marijuana culture was heavily influenced by Cheech & Chong, who at once indulged (at least Chong, and I assume Cheech) in marijuana and lampooned those who did the same. This was 1971, and I was eight years old.

Somehow, I did not take to pot. I first smelled it on someone a few years older, recoiled at its reek, and recoiled even more at the age of thirteen when some people nearby me at an outdoor concert were smoking it openly and notoriously (those were the days). Not long after that, the Jimmy Carter administration, as I understand it, promoted the spraying of paraquat on marijuana in Mexico, which then spelled health hazards to smoking it with paraquat, and I did not want the health hazard.

Part of me wanted to know more about this weed that permeated all levels of American society and culture. Ultimately, when offered some by a friend, I tried it, and did so on a few more occasions. Each time, I had been drinking some beer, too. I had trouble figuring out if I was feeling anything different than if I had just been drinking beer. Maybe I was not inhaling enough. Maybe it was low quality stuff. Maybe it was not for me.

Nevertheless, marijuana is my favorite illegal drug, which I now vicariously enjoy through my marijuana smoking clients. As I have said many times, I insist that it be legalized, and I believe that we will have a much better society if those who drink a lot of liquor switched to marijuana.

It has been over two decades since I last smoked marijuana. Since then, fascinating botanical developments have taken hold whereby excellent quality marijuana can be grown throughout the United States without needing to be imported any longer.

I hear repeated talk about marijuana's potency being much higher now than in the past, with this emphasis often coming from the anti-marijuana crowd. How true is that? If today's marijuana is stronger than 1980's marijuana, is it no different than getting the same high from one bowl today that needed more bowls twenty years ago?

Yesterday, I was asked about this marijuana potency matter by a Washington Post reporter, whom I am certain found numerous interesting soundbites to choose among. The writer told is preparing an article for this Saturday or Sunday about recent marijuana busts at two Montgomery County, Maryland, high schools, where one of the busts yielded at least two pounds of alleged marijuana. He asked me for my reaction to those who claim that some or many parents are too lax about their children's marijuana use, that this may have something to do with the parents' previous marijuana use, and that today's marijuana is more potent than yesteryear's. I replied:

- To say that a former marijuana smoker will be too lenient on his or her children's marijuana smoking is as farfetched as saying the same about a beer drinker dealing with his or her child's beer drinking.

- If today's marijuana is stronger than yesterday's, all that means is that it takes less marijuana to get the same high.

- Marijuana must be legalized now, as well as prostitution and gambling, and decriminalization of all other drugs. Without doing so, we will always have an overgrown criminal justice system that involves too much injustice, and too many unjust and incompetent judges, prosecutors, police, jailers, and probation agents.

- The overgrown criminal justice system is too expensive, and is costing me and other taxpayers money we should not need to spend. Many in the criminal justice system will be reluctant to shrink the criminal justice system, lest thy be out of jobs.

- Marijuana must be legalized to protect the Fourth Amendment. Today, cops will testify and testilie all the time that they searched a person or car based on the smell of marijuana (even going to the canard of claiming they smelled unburnt marijuana; burnt marijuana reeks, but unburnt marijuana is much more subtle, and cannot be smelled in small quantities from even a few feet away, and it is often a similar situation with larger quantities of marijuana).

- Marijuana needs to be legalized as medicine. It is a natural, effective proven alternative to many pharmaceuticals peddled by the drug companies.

- The Food and Drug administration's current drug approval process presents too expensive a hurdle for getting marijuana approved. Harvard emeritus medical professor Lester Grinspoon -- who started studying marijuana in the 1960's expecting to prove marijuana's harm but then finding the opposite to dominate -- estimates that at least $200 million is needed for studies to get a drug approved by the FDA. Absent Bill Gates or George Soros coming to the plate to fund such a study, nobody is going to pay for such a study. Marijuana is unpatented, so pharmaceutical companies will have no interest in paying for getting FDA approval of marijuana. 

- With the FDA approval process too expensive for marijuana, Dr. Grinspoon points to persuasive anecdotal evidence of marijuana's strong benefits and low risks as medicine.  

Returning to the marijuana potency issue, I ask marijuana smokers to weigh in on the extent to which I am correct that stronger marijuana mainly means that one can smoke less of it to get the same high as one could get from the less potent strains of marijuana. Jon Katz.

LSD image from DEA's website.

Although I have never used LSD, it has had a profound indirect impact on me. Ram Dass --born Richard Alpert -- likely became Ram Dass only because he was booted out of Harvard with Timothy Leary for having conducted LSD experiments in the Sixties, so he had some time on his hands to make his trip to India that is recounted in his essential and tremendously influential Be Here Now. When Ram Dass was giving out LSD in India, trying to make further sense of the drug's interaction with people, he met Bhagavan Das,who wanted in on the acid, and who introduced Ram Dass to being here now, which is a life approach that is so critical to me, and to everyone.

Although Owsley "Bear" Stanley may be legendary for his Sixties LSD manufacturing, LSD would not exist without its creator and accidental self-experimenter Albert Hofman, who left the planet on April 29 at 102 in Switzerland. After accidentally absorbing LSD through his skin as a scientist at Sandoz pharmaceuticals, Hofman experienced the following in 1943 from his first intentional LSD intake: "Now, little by little I could begin to enjoy the unprecedented colors and plays of shapes that persisted behind my closed eyes. Kaleidoscopic, fantastic images surged in on me, alternating, variegated, opening and then closing themselves in circles and spirals, exploding in colored fountains, rearranging and hybridizing themselves in constant flux. It was particularly remarkable how every acoustic perception, such as the sound of a door handle or a passing automobile, became transformed into optical perceptions. Every sound generated a vividly changing image, with its own consistent form and color."

Hofman writes more about LSD, including meeting with Aldous Huxley, in LSD - My Problem Child (1980). Without LSD, the whole course of the Sixties, its counterculture, and the Deadhead culture would have taken a dramatically different path. Thanks to Jonathan Turley for blogging on Albert Hofman and his passing. Jon Katz.

Today, Underdog is two years old. We launched on 4/20/06.with this tribute to 420:

Since our 2006 launching, Underdog has blogged every weekday, except for holidays and a few vacation days (sometimes I blog a few articles in advance of vacation days, and pre-program the articles to upload each day I am away). My law partner, Jay Marks, gets in on the act sometimes, and I look forward to more postings from Jay. Our first anniversary blog entry is here.  

Why do I blog? Through blogging, I keep a valuable diary that helps keep my written and oral pen sharpened, my self-awareness deepened, and my bully pulpit strong. Also, it can be more important to touch one person in the audience in a valuable way than for thousands to receive the message in a much less profound way. My motivation for blogging goes far beyond having a web presence for our law firm, to a thirst to express critical and undiluted messages about justice, and to increase the number of people who will assert their rights with the police so as never to need our criminal defense services in the first place.. So many civil liberties need to be won and re-won worldwide. One of the most effective ways for a non-full-time writer or television/radio personality to get out the pro-civil liberties message is through blogging. 

Imagine, just two decades ago, before Gorbachev took over in the Soviet Union followed by the fall of the Berlin Wall, samizdat dissenting publications in the Soviet Union often got distributed by recipients (risking prosecution) retyping and distributing the publications, when printing presses and photocopiers were scarce, and strictly controlled by the iron-fisted government. Today, except in such places as North Korea, which even bans cellphones, dissenting writings can travel to a much wider audience with lightning speed over the Internet from nearly any country.

Consider the high price that such literary greats as Pramoedya Ananta Toer and Vaclav Havel paid for writing and distributing their writings under severely oppressive regimes. When I first visited Indonesia in 1988, the brutal government apparently only kept Pramoedya Ananta Toer -- probably the nation's most famous writer and its greatest potential engine to advance the national and still rather newborn Bahasa Indonesia language to unite a nation that never had been much united before independence -- out of prison (after being in and out of prisons many times before, under the Suharto and Sukarno regimes and by colonial occupiers before that) and away from government executioners and assassins in order to prevent a foreign aid and trade stoppage had Indonesia done otherwise. His books were banned in Indonesia at the time, although some booksellers clandestinely sold them under risk of imprisonment. Speaking on tour when I met him in 1999, Pramoedya was deeply emotional when he said that the Indonesian government's efforts to ban his books was like trying to cut off his life. By that time, and to this day, Pramoedya's writings were much more freely available in Indonesia than when I first visited.

Pramoedya went to great lengths to keep his written and oral voice going. For instance, he started his Buru tetralogy orally through a chain of his fellow Buru island prisoners, at the times he was denied pen and paper, only to complete the multi-level mosaic story in book form years later. Sometimes he was able to smuggle out notes "'written under adverse conditions".

Subsequent to the Prague Spring, before Gorbachev,  Vaclav Havel was repeatedly hounded and oppressed for his writings. Index on Censorship once ran an article on Havel showing him smiling and carrying a sack of beer ingredients weighing down his body -- but not his spirit -- at the brewery where he worked.

Pramoedya and Havel paid high prices to keep their writing voices heard. I pay a small price if any. Perhaps the only price I pay is to alienate potential clients and others both by my plain messages and often very direct words, but sometimes people come around towards some of my ways of thinking, even if years later, and even if my words only have a small influence on the turnabout. While I understand the benefit of speaking in a diplomatic manner to open listeners' ears, I do that enough in court, and tend to be more direct and unvarnished in our blog, but perhaps not as unvarnished as my brother lawyer Marc Randazza whose blog is among the small handful that I read almost daily.

Just as musicians benefit from playing before live audiences and from their feedback, I benefit from blogging before our Underdog audience and from receiving feedback online and on the street. Please keep your feedback coming. Jon Katz.

ADDENDUM I - HAPPY 420

Here's our first blog entry:

April 20, 2006

Supporting marijuana legalization on 4/20 and every day.

In celebration of the annual 4/20 marijuana legalization events, partner Jon Katz appeared on WOCM 98.1 FM (Ocean City, Maryland) to  promote the legalization of marijuana for medical, personal, and industrial use. The same evening, Jon spoke on the criminal defense of drug cases at the invitation of the University of Maryland chapter of the National Organization for the Reform of Marijuana Laws, after the screening of Busted. By Jon Katz.

ADDENDUM Ii - HAPPY BIRTHDAY, JUSTICE STEVENS

Today, Supreme Court Justice John Paul Stevens turns 88 years old. Justice Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy. 

Image from Library of Congress's website.

I have long been grossed out about drinking tap water, which includes treated water originating from toilets. Filtering the water does not remove the toilet water.

Spring water is not a perfect solution, not being regulated sufficiently to know the impurities that are there, and often (if not always) being chlorinated, just as tap water is chlorinated. Distilled water may be the safest and cleanest option, but if it is purchased in plastic bottles, the plastic can leach into the water, and the empty bottles create permanent waste pollution if not recycled.

In yesterday's news is a revelation that a whole host of drugs (and not all localities test for presence of drugs -- here is a list of the impurities found in municipalities that have had their water tested), disinfectants, and other impurities are found in tap water, including where I live (see here, too). Aside from the question of why this story has taken so long to come to the surface, forefront, or both, it is unclear how harmful is the cumulative effect on human health from the otherwise minuscule amounts of such impurities per ounce of tap water.

I suppose that the concentration of drugs in tap water is too small to yield a positive drug test of urine or blood, but who knows, considering all the false positive drug tests that victimize people already?

This latest news about tap water unsafety likely will be a boon for the bottled water industry, at least for the short term. Cheers? 

Jon Katz. 

Image from public domain.

John P. Morgan, M.D., was a pharmacology professor and advocate for marijuana legalization. With the late Lynn Zimmer, he wrote Marijuana Myths Marijuana Facts: A Review Of The Scientific Evidence (Lindesmith Center), going head on against such myths as the notion that marijuana is a gateway to more harmful drugs. He passed away on February 15, 2008, nearly two years after his co-author and friend Lynn Zimmer died.

In this YouTube video posted by the Drug Policy Alliance/Lindesmith Center, Dr. Morgan talks about marijuana's low level of harmfulness in relation to other drugs. As to drivers under the influence of marijuana, he believes they often slow down. Even if marijuana turned out to be very harmful, which he discounts, he would find that to be all the more a good reason to have marijuana -- along with all other drugs -- legalized, regulated, and better controlled through the market place, and removed from the dangers of the current illicit drug market. Jon Katz.

Image from public domain.

In a recent position paper, the American College of Physicians recognized real benefits of medical marijuana, called for continuing research, and acknowledged the importance of rescheduling marijuana from its Schedule I status.

The report's executive summary states:

"Marijuana has been smoked for its medicinal properties for centuries. Preclinical, clinical, and anecdotal reports suggest numerous potential medical uses for marijuana. Although the indications for some conditions (e.g., HIV wasting and chemotherapy-induced nausea and vomiting) have been well documented, less information is available about other potential medical uses. Additional research is needed to clarify marijuana’s therapeutic properties and determine standard and optimal doses and routes of delivery. Unfortunately, research expansion has been hindered by a complicated federal approval process, limited availability of research-grade marijuana, and the debate over legalization. Marijuana’s categorization as a Schedule I controlled substance raises significant concerns for researchers, physicians, and patients. As such, the College’s policy positions on marijuana as medicine are as follows:

"Position 1: ACP supports programs and funding for rigorous scientific evaluation of the
potential therapeutic benefits of medical marijuana and the publication of such findings.

"Position 1a: ACP supports increased research for conditions where the efficacy of
marijuana has been established to determine optimal dosage and route of delivery.

"Position 1b: Medical marijuana research should not only focus on determining drug
efficacy and safety but also on determining efficacy in comparison with other
available treatments.

"Position 2: ACP encourages the use of nonsmoked forms of THC that have proven
therapeutic value.

"Position 3: ACP supports the current process for obtaining federal research-grade
cannabis.

"Position 4: ACP urges review of marijuana’s status as a schedule I controlled substance
and its reclassification into a more appropriate schedule, given the scientific evidence
regarding marijuana’s safety and efficacy in some clinical conditions.

"Position 5: ACP strongly supports exemption from federal criminal prosecution; civil
liability; or professional sanctioning, such as loss of licensure or credentialing, for
physicians who prescribe or dispense medical marijuana in accordance with state law.
Similarly, ACP strongly urges protection from criminal or civil penalties for patients who
use medical marijuana as permitted under state laws."

Thanks to NORML for linking to this ACP report. Jon Katz.

Activist Jack Herer's pipe invention.

In 1990, I took out a subscription to High Times  magazine in protest over a federal prosecutor's subpoenaing the magazine's advertiser records -- as reported by Index on Censorship -- in an apparent effort to clamp down on hydroponic sellers and customers, and various other suspected marijuana-related vendors. 

That set an unstoppable ball in motion for me. In those pre-Internet times, High Times introduced me to Don Fiedler, who was then the national director of the National Organization for the Reform of Marijuana Laws, and who later gave me tips for plotting my successful strategy to switch to criminal defense from corporate litigation and regulatory work; such optimistic crusaders for cannabis justice as the colorful Jack Herer and Lone Reefer; and Ed Rosenthal, who was persecuted recently for cultivating medical marijuana for sick people.

Around late 1990, I attended part of the annual NORML conference, in Washington, D.C., which was a much smaller event than today. I was mesmerized by Paul Krassner's talking about Abbie Hoffman, and got belly laughs from his jokes; learned that Hunter Thompson's no-show was Hunter Thompson being Hunter Thompson; and felt less isolated when, unknowingly, I was a few months away from leaving the life of corporate law to defending indigent clients with the Maryland Public Defender's Office. 

Not long thereafter, I attended a pro-pot rally in Lafayette Park, not too long before Gulf War I started. There, I was captivated by Jack Herer of The Emperor Wears No Clothes fame. Whether or not some of Jack's claims were unsubstantiated about marijuana being the planet-saving plant, his optimism was infectious, and I caught on to his discussion about marijuana enabling medical users to regulate dosage by stopping at the point where they feel relief. When I bought Jack's Emperor Wears No Clothes, he autographed it below a message saying: "Jon- Start from page one, and teach it to the world. Nobody can beat a fact. Love, Jack."

On my way back from the rally, by subway, I bumped into a law school classmate who asked where I was coming from. When I told him about the pro-pot rally, he said: "Do you know I prosecute such cases." I replied: "I know. It breaks my heart." I rummaged through the items I had gotten from the rally, and gave him a "No Narcs" sticker; his wife laughed. A few years ago, he left the darkside to do criminal defense.

Some of my most enjoyable clients are my marijuana defense clients, at least the ones who actually use, rather than those dragnetted into something they did not do. If all alcohol drinkers switched to marijuana, this would be a much more peaceful and non-violent planet.

I felt inspired to write this blog entry after stumbling upon the above-shown video of Jack Herer's pipe invention. The pipe is intriguing, and nicely-designed, too.

Over the years, the marijuana legalization movement has made significant inroads towards legalizing medical marijuana and reducing the penalties for simple marijuana possession. It is entirely inaccurate to view the marijuana legalization movement as a bunch of stoners not to be taken seriously; moreover, many marijuana users are far from stereotypical stoners (including emeritus Harvard Medical School Professor Lester Grinspoon and Cosmos co-author Ann Druyan). By now, the marijuana legalization and drug reform movements have gone very mainstream, to include many people, like myself, who do not even use illegal drugs. Legalize it. Jon Katz.