Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, May 30, 2014

Congress Votes to Cease Funding DEA Raids of Medical Marijuana Dispensaries

With its power of the purse, Congress passed a vote today, 219-189, to cease funding the Justice Department, and the DEA within it, for enforcement efforts to shutter legal medical marijuana dispensaries, caregivers, and other types of legal marijuana growers.  This vote is consistent with Attorney General Eric Holder's pronouncements, issued earlier this year via a series of inter-office memos, that the DOJ was no longer prosecuting medical marijuana producers.

As we here at the Law Blogger announce this arguably historic vote from a few hours ago, it is important to keep in mind that marijuana continues to be listed on Schedule 1 of the federal Controlled Substance Act.  As we have opined in various posts to this blog, until it is truly legalized and removed from Schedule 1, pot will continue to be a grow-your-own fringe industry serving a largely homeopathic self-medicating population.

In other words, it may not live up to its true corporate potential.  Billions of dollars of inexhaustible demand await, that's for sure.  Taxes, regulation, banking with it's compliance laws, insurance with its compliance laws; everybody's happy in the professional world.

But the hippy farmers and the Latin American drug cartels would be out if marijuana were struck from Schedule 1.  Nevertheless, this vote could be the next step in what some see as the inevitable political process of decriminalizing and, eventually, legalizing marijuana.

Well, we shall see what happens next.  But this vote sure makes former DEA agent Patrick Moen, whom we blogged about last week, look like a genius.

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Are SCOTUS Justices Techno-Luddites?

By:  Timothy P. Flynn

Paul Fletcher, the publisher of Michigan Lawyers Weekly, suggested that Justice Antonin Scalia should rent episodes of the HBO mega-hits, "Game of Thrones" and "Boardwalk Empire".  The purpose of this: to educate Justice Scalia about HBO [referenced in a recent case]; he seemed to misunderstand the pay-to-view business model of the network; he has probably never had cause to purchase the service.

Last year, Chief Justice John Roberts famously inquired about the difference between an e-mail and a pager. Imagine that disconnect.  Remember pagers...?  And imagine life without e-mail or cell phone; there's an upside to that world view.

Then there's Justice Anthony Kennedy who assessed that mission-critical high-end software coding could be accomplished by "any group of computer people sitting around a coffee shop", over a weekend, munching on code; magically producing software by Monday morning, in a commerce-ready format no less.  Also very disconnected.

According to Fletcher, Justice Sonia Sotomayor, despite her minor "netflick - netflix" gaffe during some recent oral arguments, gets the highest marks for being techno savvy.  Her colleagues, on the other hand, were described as "incompetent Luddites" by an unidentified legal blogger that spoke with the Reuters news service.  We here at the Law Blogger agree with Fletcher that such an assessment is overly harsh; probably wasn't anyone from over at SCOTUSBlog.

A simple solution is to have the SCOTUS law clerk corps train the Justices about the basics of wired e-law with a few clutch, but rudimentary devices.  Such things are traditionally delegated in the marble fortress housing the SCOTUS chambers.

At some point, however, reality does finally come crashing in.  Historically, SCOTUS lags behind, relative to the other branches of our government, from a technological perspective where, repeatedly, it receives poor marks.

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Monday, May 26, 2014

DEA Agent Turns Pot Industry Consultant

By:  Timothy P. Flynn

Last year, former DEA Supervisory Special Agent Patrick Moen jumped from the federal law enforcement ship he was on his entire career.  He swam aboard Privateer Holdings, a Seattle-based private equity firm dedicated to the development of the emerging North American cannabis market, where he currently serves as the Managing Director of Compliance.

Readers of this blog will recognize the recurrent theme embedded in this post.  Put simply, although marijuana has become much less criminalized over the past decade, its persistence on Schedule 1 of the federal Controlled Substance Act significantly compromises the trajectory of the legalization process.

During his career at the DEA and the Department of Justice, former agent Moen was immersed in all aspects of the illicit drug industry.  He developed expertise in forensic accounting, electronic surveillance, undercover operations, and intelligence.

Recognizing the trend toward legalization of marijuana, Moen kept an eye on the industry players along the West Coast from his home in Portland, Oregon.  He was underwhelmed until he saw an interview with Brendan Kennedy, the Yale-educated CEO of Privateer Holdings.

As the compliance director, Moen navigates the network of money-laundering and conspiracy statutes and other state drug laws to maintain 100% compliance for Privateer.  Check out the firm's website, linked above; they truly have it going on as far as the pot industry is concerned.

We here at the Law Blogger have followed the federal court challenges the pot lobby has made to the Schedule 1 classification; we have followed the international relations involved with our sudden shift in the quarter-century "war-on-drugs", and the effect this recent about-face has had on Latin American regional treaty states that have accepted our international aid dollars for decades to eradicate pot and criminalize drug cartels.

As former agent Moen fully understands, state pot laws and medical marijuana acts are designed to facilitate the hippy farmer "grow-your-own" business model.  But enterprising profiteers are pushing the bounds.

The pot industry, however, need banks and insurance companies to get involved in the business plan for these, er, budding companies to take the next steps.  The big boys have shied away due to the continued federal illegality, leaving company owners to carry boxes of cash to banks every day, wasting time counting out paper money.

Neither are banks and insurance companies reassured by the present administration's "hands-off" approach to the federal marijuana laws.  AG Eric Holder will not hold his post forever; political winds can change overnight.

We here at the Law Blogger believe it is time to truly decriminalize marijuana by removing it from Schedule 1.  The case brought by the pot lobby currently under consideration by the SCOTUS will not get the job done; that is a task for Congress.

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Thursday, May 22, 2014

Marijuana Honey Oil Burns Down Insured's House

Can a medical marijuana card-holding insured homeowner collect on an insurance policy when his house blows-up and burns down due to a mistake he made while cooking-up a batch of marijuana honey oil?  According to U.S. District Judge Thomas Ludington, sitting in Bay City, the answer is, "No!"

In a recent case decided by Judge Ludington, a Bay City homeowner was making a batch of what has come to be known as marijuana honey oil.  Honey oil is a marijuana derivative that concentrates THC -the active ingredient in a marijuana leaf- into a wax or oil; smoking or ingesting the substance produces an enhanced "high".

To get to the wax, however, requires an intensive production process.  Marijuana leaves [er, much more than are allowed under the Michigan Medical Marijuana Act] are crammed into a pvc tube capped on one end.  Then butane, and lots of it, is infused into the tube; essentially, the leaves are marinated in butane.

This marination process causes the plant matter to waste away, leaving a liquid mixture of butane and THC which is then strained through a filter.  The residue collected in the filter is then scrapped off and spread over a plate or other drying surface where the butane is allowed to evaporate.  What remains is a highly potent wax or oil that can be smoked or used in cooking.

Why go through this process?  Because medical marijuana in its most common leaf form fetches only between $10 and $20 per gram.  The oil, on the other hand, goes for up to $80 per gram.

The possibility of higher profit apparently lured the insured homeowner in the Bay City case to cook-up a double batch; this required copious amounts of butane.  Anxious to sample his product, he was cleaning a razor with a hand-held torch when butane fumes that had collected throughout the basement during the production process ignited, burning down the house.

Although the homeowner's insurance company paid-out to the tune of six figures, it did so under a "reservation of rights".  In the ensuring litigation, the federal judge ruled that what happened in the home was no accident; the homeowner was engaged in intentional acts that created predictable risks.

The case is illustrative of the lingering disconnect that the recent marijuana laws have created due to marijuana still being classified as a Schedule 1 drug via the federal Controlled Substance Act.  Insurance companies are going to begin to deploy express exclusions; landlords are going to prohibit marijuana production; and banks will not get involved in financing the marijuana production process.

Thus, for the foreseeable future, marijuana will continue to be produced the old-fashioned way; via the hippie farmer, one plant at a time.  Industrial production will require a re-alignment of the federal laws.

We here at the Law Blogger are reminded of the lyrics and title of a song by the Rastafarian legend Peter Tosh:  "Legalize it, Mon."

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Friday, May 16, 2014

California's Cell Phone Privacy Case Heads to SCOTUS

By: Timothy P. Flynn

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  There were, of course, a few steps in between.

As SCOTUS editor Amy Howe puts it in plain English, the case is the Law & Order version of "If You Give A Mouse A Cookie".  The traffic stop led to the discovery that Riley's drivers license was suspended; bummer, arrested.

When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to..., you guessed it....weapons!  Guns in the trunk.

He says: target practice; they say: Gang-related, and attempted murder.  Oh yeah, the cops also located Riley's cell phone in the car.

The cops extract the data from Riley's cell phone which ultimately help them prove their capital charges.  At his trial, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Then there's the sentencing hearing.  Huge sentencing problems in this case; enhancements are all over the place.  Essentially, the sentencing enhancements are a direct result of the weapons and attempted murder convictions which were largely based on Riley's cell phone data.

That's how Mr. Riley caught his case.  It does raise some interesting concerns for the rest of us; hence SCOTUS wisely granting certiorari.

Riley's direct state court appeal was rejected on the basis of a recent California Supreme Court decision holding that the scope of an officer's "search-incident-to-arrest" includes the arrestee's cell phone.  The next step for Riley was to petition the SCOTUS for a writ of certiorari.

We here at the Law Blogger are glad they took the case and will be waiting for this decision; hopefully to be issued as the Court wraps up its term.  The case was only argued in late April, so it's sure to be one of the final decisions released.  

Ms Howe summarized Riley's argument in a recent SCOTUSBlog post:
In his briefs at the Supreme Court, David Riley urges the Court to overturn the decision below.  He warns that a ruling in the state’s favor could sweep broadly, affecting the thousands of people who are arrested every day in the United States — often for offenses as trivial as jaywalking that don’t ever result in convictions.  Allowing police to search smart phones whenever they arrest someone would be a serious invasion of privacy, he says, because so many of us keep so much private information on them.  Indeed, Riley adds, this is exactly the kind of “general search” – looking through people’s homes and offices in the hope of finding evidence of a crime, even if the police didn’t have any real reason to believe that one had been committed – that the Framers of the Constitution were trying to prevent when they drafted the Fourth Amendment. 
Turning to more specific legal arguments against allowing cellphone searches without a warrant, Riley contends that, of the two rationales for allowing searches after someone is arrested, neither justifies the search in his case.  First, although police can search an arrestee for weapons that could be used to harm them, smart phones only contain things like texts, emails, photos, and videos, all of which “are categorically incapable” of being used as weapons.  Second, once police have the smart phone, there is no danger that the arrestee can destroy any evidence that it might contain:  during the time that it takes police to get a warrant, they can prevent someone else from accessing the phone remotely by putting it in a Faraday bag, which is designed to block cellular, WiFi, and other signals from reaching the phone.
If law enforcement can lawfully seize and forensically examine your cell phone pursuant to an arrest for something like, say, spitting on the sidewalk [or any valid arrest, however minor], then they can basically get the meta-data of your life which may or may not lead to counts being added to your felony charging instrument.

Well, it's Big Brother, for sure.  Amazing how vital a cell phone/computer has become to the average citizen.

Just remember, however, that your device can fall into the hands of the government at any moment in time. Nothing to hide, nothing to fear?  Let us see how the SCOTUS views it.

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Wednesday, May 14, 2014

Arkansas Next State to Nullify Same-Sex Marriage Ban

Citing the infamous Dred Scott decision and Loving v Virginia, a circuit court judge in Little Rock, Arkansas last Friday continued an unbroken procession of states to strike down state law bans on same-sex marriage.  Circuit Judge Christopher Charles Piazza's 13-page opinion in Wright v Arkansas held that the state law ban, arising from a voter-approved constitutional amendment back in 2004, was:
an unconstitutional attempt to narrow the definition of equality.  The exclusion of a minority for no rational reason is a dangerous precedent.
The same-sex marriage ban sailed through the 2004 state election with 75% of Arkansan voters approving the measure.

Perhaps because of this, in conjunction with his duties to uphold the laws of his state, Arkansas' Attorney General Dustin McDaniel filed a motion on Monday with the Arkansas Supreme Court to stay Judge Piazza's decision.  As occurred here in Michigan in the DeBoer case, no sooner was the ink dry on Judge Piazza's opinion, when county clerks began issuing marriage licenses to same-sex couples.

In squarely addressing this civil rights issue, Judge Piazza refused to follow a 2006 decision from the federal 8th Circuit Court of Appeals [the federal appellate circuit which includes the state of Arkansas] which upheld a Nebraska state law ban on same-sex marriage.  Judge Piazza held that the 8th Circuit's decision pre-dated the seminal SCOTUS decision in United States v Windsor.

Arkansas' ban on same-sex marriage is also being challenged in federal court in the case of Jernigan v Crane; the federal judge in that case is currently considering AG McDaniel's motion for summary judgment.

So the same-sex civil rights saga continues across the nation.  We here at the Law Blogger will attempt to keep abreast of the multiple fast-paced developments.

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Tuesday, May 13, 2014

False Confession Appeal Rejected by the Michigan Supreme Court

Davontae Sanford in better times.
This blog ran a post detailing the plight of young Davontae Sanford back in 2012.  At age 17, Sanford was sentenced, based on his confession, to 37-90 years on 4-counts of second-degree murder for the 2009 Runyon Street shootings in Detroit.

It is widely accepted that his was a false confession and that the real murderer was Detroit hit-man Vincent Smothers, who also confessed to the same crimes; he has repeatedly stated Davontae had nothing to do with the quadruple-murders.

The consequence of Sanford's [false] confession to the Runyon murders was that the DPD ignored the hit man's detailed confession to the same dirty deeds.  They had their man on the Runyon murders [Sanford], and "that-was-that."

According to Sanford's trial transcript, Wayne Circuit Judge Brian Sullivan pushed both sides to produce a plea agreement.  Sanford's plea to second degree murder, in hindsight, may have been rational given Judge Sullivan's comments at his sentencing hearing that, had he not pled, Sanford would have been convicted of first degree murder and sentenced to "the bullet", i.e. life in prison, no parole.

The young man's appeal was decided in his favor last year when the Michigan Court of Appeals remanded his case back to the Wayne County Circuit Court, vacating the lower court's denial of his motion to withdraw his guilty plea, and instructing the lower court to consider expert witness testimony relative to false confessions.  The Court of Appeals also ruled that the hit man, Smothers, could testify at Sanford's remand hearing.

Well, now the Michigan Supreme Court has gone and reinstated the lower court order denying Sanford's request to withdraw his guilty plea.  The High Court held out one last thin straw of hope to Sanford: its order does not prejudice Davontae's right to file what in our industry is known as a 6.500 moition; the last chance "hail Mary" for a convicted felon.

So now it's on to the 6.500 motion; perhaps the judge presiding over the matter in the Frank Murphy Hall of Justice will decide to hear from the experts on the topic of false confessions; perhaps the judge will want to hear from the Detroit Hit Man about these murders.

Either way, Davontae has wasted away in the MDOC for the past five-years for a crime most believe he did not commit.  We here at the Law Blogger need to believe that, despite his false confession, his is a soul worth saving...

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Thursday, May 1, 2014

Cyberstalker Sentenced to Federal Penitentiary

Adam Savader, at only age 22, has demonstrated that he has enormous talent, along with a serious mental illness.  The odd mix, along with the New Yorker's penchant for stalking Michigan students, has landed him in federal prison for 30-months.

It is uncommon to hear names like Newt Gingrich, Mitt Romney, Paul Ryan, and Bill Clinton invoked at a sentencing hearing.  Yet that's what went down in Judge Marianne Battani's courtroom in the United States District Court here in Detroit last week.

Savader, a campaign volunteer for Newt Gingrich, sank into a deep depression when that campaign fell apart in 2012.  So he took-up cyberstalking Michigan college co-eds; hacking into their digital files and extracting nude photos, then texting demands for more photos of the victims under the threat that he would transmit the pics he extracted to their relatives.

To do this, the man from Great Neck, NY, used an alias in conjunction with a Google phone service. He bullied one young woman with the following text threat:
You have until noon. I am not bluffing. Don't be stupid. Once I send pics of you, they cannot be unsent.
Now, Savader has plenty of time to re-think such aggressive cyberthreats.

Recognizing that posting nude pics of oneself is legal, Judge Battani wondered aloud why young women were motivated to do so, thereby setting themselves up for hackers like Savader.  At his sentencing hearing, Savader quoted Bill Clinton, while his lawyer invoked letters written on Savader's behalf [long before his cyberstalking charges were filed] from the manager of Newt Gingrich's campaign, and U.S. Representative Paul Ryan, acknowledging the felon's hard work on the Gingrich and Mitt Romney presidential campaigns.

We here at the Law Blogger heartily agree with Judge Batanni's warning: think twice about posting nude pics of yourself on-line.  Guys like Adam Savader are out there in cyberspace, lurking like a ghost ready to pounce.

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