IOWA CHAMPION

Decriminalization of marijuna in Iowa? Not yet.

I had someone recently ask me if they would get arrested in Iowa for possession of a small amount of marijuana.  The most straightforward answer a criminal lawyer can give is yes.  In Iowa, no amount of marijuana is legal to possess, not even for personal use, medical use, or to feed to your dog. No excuses, whatsoever. 

Now, just like other jurisdictions, police officers in Iowa have discretion to make an arrest.  If a particular officer in a particular situation doesn't want to arrest someone for a burned up blunt in the ashtray, fine, it's his call.  But nine times out of ten, you are at least getting a criminal citation which will result in a prosecution for a serious misdemeanor.  Most of the time though you're getting outright arrested and booked into jail.

Other jurisdictions are not so harsh.  In various States possession of less than four grams or some other low amount is a non-arrestable offense, you may get a ticket like a speeding ticket, but you pay a small fine and you're done.  That is not Iowa.  I have seen people in Polk County get prosecuted for residue in a pipe.  If there is enough "substance" to test, you can be prosecuted. Most of the time, even if that type of case is filed you will be able to work with the prosecutor to get a fair resolution.  If not, those are cases that need to be taken to trial, where the decision to convict is  up to the jury. Prosecutors that take on those types of cases to trial aren't going to have a high success rate.  My experience is that small quantity pot cases are some of the toughest to win for the State.  I'd say on any jury of 12 people at least 3 are occasional or moderate marijuana users.  If the defense attorney can give them ANY reason to acquit their client they will be ready and willing to do so. 

The outright jury nullification argument, however, is not likely to win any cases or gain you any respect from the Court. Besides being unethical, you will always have two or three people who think all drugs, even pot, are the scourge of the earth.  They will vote to convict on almost any evidence of guilt.  As a defense attorney, you have to give the pot smokers a little ammunition to fight these people.  Most of the time your client will be in a situation where you can argue a lack of knowledge or attack "constructive possession": It wasn't my coat, someone else put it in my purse, I was just the passenger in the car etc. If you've got something to talk about, you're alive.

Given the increasing strain on courts and probation personnel, Iowa would do well to adopt this method of handling marijuana cases.  They could put a $500.00 fine on possession and free up thousands of man hours and tax dollars by doing this instead of putting people on probation.  Fewer court appointed attorneys and less judicial resources (judges, probation officers, court clerks) along with a higher fine would be a financial moneymaker for the State.  Unfortunately, I just don't ever see the people that brought you the two-thousand foot law for sex offenders getting around to this issue anytime soon.

Bottom line is, in Iowa you take the risk of criminal prosecution for even the tiniest amount of marijuana.  Be warned, beware.

Excellent Iowa Supreme Court opinion suppressing marijuana search warrant

The Iowa Supreme Court issued an opinion Friday that suppressed marijuana obtained through a search warrant because the issuing magistrate was not "neutral and detached".  The analysis was done under both the Iowa Constitution and the Constitution of the United States.  The results under both was the same, reversal of the lower court.

The case originated out of Worth county in North Central Iowa.  The defendant (and the defendant in the companion case also decided Friday) was the target of an investigation into marijuana usage. Several complaints to police were made by the Grandparents of the defendant's child, implicating marijuana usage.  The complaints prompted a "trash-rip" where the police took the defendant's garbage, locating marijuana seeds, stems, and rolling papers.  There was also marijuana turned over to the police that the grandparents found in a baby blanket.  All in all, the evidence supporting the warrant was overwhelming, much more than the probable cause needed.  When the police presented the warrant to the part-time magistrate, he recognized the name of one of the targets as an opposing party in a paternity action he was handling.  Despite that, the magistrate reasoned it was proper for him to sign the search warrant because it was based on such solid evidence. When the warrant was issued, substantial evidence was recovered, including marijuana, methamphetamine, and paraphernalia. The criminal defense attorney filed a motion to suppress, which was denied.

The Supreme Court disagreed with the lower court's decision to allow the drugs into evidence in the trial.  Citing a very similar case from Georgia and analyzing the Code of Judicial Ethical, the justices concluded that it was a violation of the defendant's Fourth Amendment rights for this magistrate to determine probable case.  His client's cause would be advanced by a successful search warrant so there was a clear connection between his role as a private attorney in an ongoing matter and his role as a magistrate. The connection to the civil case objectively cast doubt on his ability to perform his function in a neutral and detached manner.

The State of Iowa tried desperately to salvage this warrant arguing harmless error.  Thankfully the Iowa Supreme Court realized that violations of constitutional protections as long standing and important as the ones raised here are never harmless error. Knowing that some people will be put off by the eventual dismissal of the underlying criminal case on such a seemingly "minor" violation, the Court cited Boyd v. United States from 1886:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure...It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

This goes down as one of those victories whose significance will not be appreciated as much as it deserves (other than by criminal defense attorneys).  Our constitutional protections are always significant. They are protected by criminal defense attorneys fighting back against the intrusion of the government and by our appellate courts recognizing the need for strict enforcement. For all you "liberal judge" haters, I would remind you that if we tolerate subtle reductions of our rights, we risk waking up one day without them. Patriot Act anyone?

Narc temper tantrums

It upsets me when people in this business can't act like professionals.  There are a lot of different jobs in the criminal justice system:  Police Officer, Sheriff's Deputy/Jailer, Judge, Attorney, Probation Officer, Substance Abuse Counselor, Mental Health Staff, Juvenile Court Officer, Criminalist, Prison Counselor, Court Reporter, Evidence Technician, and Court Clerk to name just a few.

So why, of all of those people, is it usually a cop that will go "cowboy" on you and think they don't have to act with professional courtesy? 

I don't want to lump all police together on this. I work a lot of drug cases and most of the officers and agents I meet are completely professional.  They are well trained, know how to do their job, and do it very well most of the time.  They also don't try to do my job. They understand my role in this process and they respect it, even when they don't like it.  But, if you are going to run into someone who doesn't play well with others, it won't be an attorney, or even a judge.  It'll be a cop.

Some time ago, I dealt with an unnamed narcotics officer from a smaller jurisdiction.  One of the suspects they arrested had hired me instead of "cooperating" with them.  Now, when I called to speak to the officer and explain that all things considered, we were declining their offer, I got hung up on.  "That's all I need to know!" CLICK........  Um, Hello......

Now, there will come a time that someone I represent will have something of value to the authorities.  I will be approached by this officer or one of his colleagues, and they will seek our help, a little quid pro quo.  What will my response be?  Will I hang up?  Will I tell them to go pound sand because he acted like a baby several months ago?  No, I will just do my job.  I will not act like a child because I am not a child. I am a professional.  I know that if you throw a tantrum every time you don't get your way, nobody will want to play with you anymore.

I don't care if you're a cop, lawyer, judge, or clerk; if you are going to last for any significant time in this system, you can't take it personal every time someone does something you don't like.  It's the nature of the game.

Unfair thresholds in Iowa's drug laws

Reader John Neff (who I should point out is the first confirmed person other than a friend, relative or lawyer that reads my Blog) got me thinking about the drug thresholds that apply to class B felony drug charges in Iowa. John's comments came after my post about the new Minority Impact law that requires lawmakers to consider the impact any proposed criminal justice statute would have on minority populations in the state. His thoughts on the extremely low threshold amounts tied to mandatory minimum sentences are right on point. They are probably the biggest factor in prison overcrowding in Iowa. 

Because the threshold level for a mandatory 25 year prison sentence on methamphetamine charges is so low (five grams), prosecutors have unconscionable power over a defendant's fate during plea bargaining. When you add in the fact that a guilty plea is tied to an earlier parole, prosecutors have everything they need to MAKE defendants plead guilty and agree to a prison sentence.

The injustice with the low threshold is that the person trafficking TEN POUNDS of methamphetamine doesn't see any more prison time than the low level user/dealer he has as a customer.  The B felony applies to weights between 5 grams and 5 kilograms (about 11 pounds).  How does that structure make any sense?  When a person buys seven grams and turns around to sell a gram or two to support his own habit, he puts himself in the same boat as the ten pound dealer.  Try telling the prosecutor that only three of the seven grams you possessed were actually going to be delivered so it should be a C felony and not a B.  They won't bite.

Plea bargains in B "crack" and other "hard drug" cases (cocaine, heroine, PCP, and some prescription drugs) tend to include more agreements based on sentencing recommendations by the prosecutor. Because they lack the hammer of a mandatory prison sentence, the prosecutor agrees to recommend probation if a plea is entered to the highest offense.

The problem is that "crack" still has an unfair threshold to get from a B to a C felony. Does it make any sense that a person could deliver 99 grams of powder cocaine or heroin and only get a C felony charge when a "crack" defendant with 11 grams gets a B felony?  No way.

The class B felony thresholds need to be more uniform, and more importantly, higher for "crack" and meth.  Whether your policy is one of interdiction and prosecution, or education and treatment, you need to sort out the true drug traffickers from the low level user/dealers. The only way to do that is to have higher, realistic thresholds for increased penalties. Put them all up to 100 grams (about 1/4 pound), like it is currently for heroin and powder cocaine. That would keep more drug trafficking offenses as class C felonies, and reduce the number of long prison terms for low level user/dealers that are selling a couple grams a week to their friends in order support their own habit.

Drug dogs used in lock-down search of West Des Moines schools

The Des Moines Register is reporting that West Des Moines Valley High School and Valley Southwoods Freshman High School were locked down this morning so that police could perform a sweep for drugs that included the use of police dogs.

There are not many details available as to the method by which the search was conducted, or whether or not individual students were targeted.  It does not appear that anything other than lockers were searched. There were no drugs located in either school. [UPDATED: They are now reporting that one student is facing further investigation at Valley High]

Such searches have been upheld in various courts if conducted "reasonably". Problems can arise, however, when conducting these mass searches.  Probably the most infamous occurred at Stratford High School in Goose Creek, South Carolina where gun wielding cops terrorized students in a "crack-house" style raid.  Students were forced to the ground and handcuffed by officers brandishing their service weapons. The ACLU has taken up the cause of students whose rights were infringed in New Mexico and Washington when school searches went too far.

I understand the desire to keep our schools safe and secure for our children, I really do.  But one has to question the value of these searches when we've seen how wrong they can go. What's more, no drugs were located, which seems to be the norm.  That means that either the students are completely drug free or the drugs are somewhere else (like little Billy's sock drawer). Meanwhile the vast majority of students, who are not breaking any laws, minding their own business, and trying to learn, are disrupted by a "lock-down" search and detained in their class rooms.

The kids that are using or dealing know what the situation is; they are under supervision throughout the day by teachers, staff, and friends that can't keep their mouths shut.  If they have drugs while on school grounds it will most likely be detected at some point. Thats why these searches rarely find anything significant. This is an issue that can be addressed without an intrusion on EVERY student.

Drug sentencing post-Abrahamson in Polk County

I had a sentencing hearing this morning on a drug case that was tried in Polk County back in February, before the State v. Abrahamson decision. This is a recent Iowa Supreme Court case that I posted about on this blog. The judge's ruling in my client's case is an example of the application of the merger doctrine examined and clarified in Abrahamson.

The charges in my client's case were Delivery of a Simulated Controlled Substance and Possession with Intent to Deliver a Simulated Controlled Substance.  The facts of the case involved one transaction at one location over about a 20 minute encounter. There was some record made a pretrial proceeding as to whether or not the two offenses would merge for sentencing purposes in the event the defendant was convicted.  I felt there was a good argument that they should merge but I also agreed that the case law on the issue did not support merger. The issue was addressed directly in the Abrahamson opinion, which came out after my client was found guilty but awaiting sentencing.

At the sentencing hearing today, the Assistant Polk County Attorney assigned to prosecute my client's case agreed that the two charges must be merged for sentencing purposes according to the Abrahamson decision. He had contacted the Iowa Attorney General's Office for some guidance on how the decision should be applied. Apparently, the AG's office said that if there is one contemporaneous event with the same facts and circumstances, the sentences WILL merge per the Abrahamson decision. 

This will not be the outcome in all drug cases, obviously. If the police can show different conduct in different locations, or at different times (e.g. a traffic stop generating a Possession with Intent to Deliver Methamphetamine charge and then a later search warrant that would generate a Manufacturing Methamphetamine charge) then you will have charges that will probably not merge at sentencing.  This is a reasonable interpretation and is more in line with common sense.

I don't think a lot of people caught this part of the opinion because the majority of the opinion deals with speedy trial/indictment issues. I wanted everyone to be aware that this has in fact changed the law as far as sentencing in drug trafficking cases.  If you defend drug cases in Iowa state court, you need to read this opinion.  It can have an impact in plea negotiations if the prosecutor is made aware that the case that he thought had a maximum sentence of 20 years is now down to 10, and it has to be followed at sentencing.

Very good op-ed in the Seattle Post Intelligencer

Rick Steves is a popular travel writer that I have surfed across on Iowa Public Television from time to time.  He also has one of the worst named websites ever: Rick Steves' Europe Through the Back Door (what was he thinking?). Mr. Steves wrote a very good opinion column in the Seattle Post Intelligencer analyzing American marijuana control policy and what he has observed first hand in Europe.

We Need to Get Smart About Marijuana

The point of Mr. Steve's article is that current prohibition policy costs us more money than a safe and effective education and medical treatment policy.  He points out how European countries woke up to this reality several years ago.  For every dollar spent on education and counseling programs fifteen are saved from police, courts, and prisons. Decriminalization also leads to an increase in tax revenue. The last line is the best:

We need to find a policy that is neither "hard on drugs" nor "soft on drugs" -- but smart on drugs.

Unfortunately, I don't think we will learn this lesson any time soon.

Iowa Court of Appeals reverses suppressed drug evidence

The Iowa Court of Appeals issued an opinion Wednesday reversing a Tama County district court judge who suppressed evidence obtained through a search warrant. 

Defendant Lysa Fisk was at her apartment when the Tama police chief came to talk to her about a complaint that a vehicle registered in her name was "abandoned" in the street. The defendant and the police officer spoke on the apartment's intercom where she wisely told the officer he could not come to her door.  Unfortunately she then agreed to come to the main entrance where the officer detected the "strong odor" of marijuana.  After the conversation ended the officer obtained a key and went back to the building where he walked around the common areas and detected no marijuana odor including in front of the defendant's apartment door.  The officer obtained a warrant and much to everyone's surprise, he found marijuana in the defendant's apartment. The defendant challenged the warrant focusing on the nexus between the marijuana and the defendant's apartment because the odor was only detected in a common area.  The district court agreed there was no connection and suppressed the evidence.  The State asked for discretionary review; and the Court of Appeals granted the request. 

The Court reversed stating that in determining the connection between the marijuana and the defendant's apartment the issuing judge may use reasonable inferences to establish the nexus.  The Court pointed out that the defendant was in her apartment immediately before the conversation with the police officer and came to the location of the conversation through the connected common areas.  The smell was only present when the defendant was present.

The conclusion here was actually pretty predictable. There have been prior Iowa opinions that have come very close to saying that the odor of marijuana alone would be probable cause to search a vehicle; although it has never explicitly stated this.  The decision in this case makes that conclusion a little more certain. It stands to reason then that if a search warrant can issue on a smell alone, the police can search a car on smell alone. The connection would obviously still need to be established in time, but that wouldn't be an issue in most vehicle searches.

The bigger thing to take from this case is...never agree to meet the police officer when you've just smoked a bunch of pot!  It always astounds me when defendants willingly put themselves in contact with a cop when they should be running the other way. Of course, maybe they do it because their judgment is a little impaired at the time.

Important Drug Case from Iowa Supreme Court

The Iowa Supreme Court issued a ruling today in State v. Abrahamson that overturned a Marion County case on grounds that the State of Iowa violated the defendant's right to a speedy trial.  The decision was issued after the State's application for further review of the Iowa Court of Appeals issuing its own decision overturning the conviction was granted.

Michael Abrahamson was arrested on April 23rd, 2004 for conspiracy to manufacture methamphetamine. On April 30th, 2004 a trial information was filed charging the defendant with that crime.  On July 28th, 2004, the District Court granted a continuance based on the defendant's involuntary commitment to a drug treatment facility.  The trial was set for August 25th, 2004.  On August 13th, 2004 the case was dismissed by the State's motion.  The State's motion cited the dismissal was "in the interest of justice" but no specific facts were cited in the motion or order granting the dismissal.  On the same day the State filed a new two count trial information alleging the crimes of Conspiracy to Manufacture (count I) and Manufacturing (count II); both counts were based on the same investigation and arrest of April 23rd, 2004.  The defendant was able to have the conspiracy charge dismissed, arguing the State failed to show that the dismissal was in fact "in the interest of justice" and done solely to avoid speedy trial issues.  The judge failed to dismiss the manufacturing charge.

Abrahamson was convicted at trial. The appeal raised the issue of the refiling of the charges in relation to the speedy trial requirement.    The essential question was whether or not the conspiracy charge was the same charge as the manufacturing charge that was dismissed.  The Court of Appeals relied on a previous decision that conspiracy was merely an alternative method of charging the same offense under Iowa Code Section 124.401(1); the Supreme Court agreed.

In the most important part of the decision today, the Court stated that all of the different methods of violating Iowa Code Sections 124.401(1) [manufacture, deliver, or possess with the intent to manufacture or deliver a real or simulated controlled substance, or to conspire to do any of those things] amount to one crime of drug trafficking. The State may file still the charges under alternative theories but in the end the charges would become one violation of Iowa Code Section 124.401(1) and merge for purposes of sentencing.

The importance of this decision cannot be overstated.  It prevents the State from coming back at a later date with an alternative charge based on the same conduct in the event that speedy trial or speedy indictment rules are violated (as they did in this case). It also appears to overturn some prior case law that delivery and possession with intent to deliver were seperate offenses.