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Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.
 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Strongest Medical Evidence Yet of the Harm from Marijuana Legalization

By Ross Parker
ticklethewire.com

The evidence continues to mount of the dangerous health risks of today’s potent forms of marijuana, especially to segments of the population such as juveniles and young adults. But the medical evidence seems to be having little effect in view of a combination of denial, lack of political will, and ignorance on the part of state legislators and the public in general, as well as the well organized and financed forces of legalization.

Last week The New England Journal of Medicine, probably the most respected medical journal in the United States, reported in an article entitled, “Adverse Effects of Marijuana Use,” by four physicians and researchers that there is a substantial level of scientific confidence that the drug can result in addiction, memory and cognitive function damage, impairment of motor function, and long lasting negative changes in brain function. Their conclusion was that increased availability from legalization will significantly increase the negative health consequences to the population.

As shown in other studies, short term use makes it difficult to learn and retain information. Driving skills are impaired. Risky behavior and even paranoia and psychosis can result. Long term use can alter brain development, encourages dropping out of school, a lower IQ during adolescence, reduced satisfaction and achievement, chronic bronchitis, and an increased risk of schizophrenia.

Although the study advises that there can be other factors involved in these devastating results, the link between marijuana and social factors such as lower income, more public assistance, unemployment, criminal behavior, and a lower life satisfaction has been established by several studies. People who used the drug before driving were from 2 to 7 times as likely to be responsible for an accident than those who had not used alcohol or marijuana.

The increase in the average potency of THC content continues to increase, from 3% in the 1980s to 12% in 2012. As the cultivation continues to become more sophisticated in states like Colorado and California, one could expect this figure to increase significantly and, correspondingly, to increase the extent of the adverse effects on increasing numbers of people in the population. Increased emergency room visits (100 % increase from 2004 to 2011) and reports to poison control centers (three times the number in legalization states) forcefully demonstrate that this phenomenon is well under way.

Importantly, this steep increase in the THC content also calls into question the validity of all of those studies done in previous decades. The assurances of those early studies, on which pro-legalization forces rely so heavily to assuage the reluctance of state legislators, are worth little in the face of these statistics and the recent medical studies.

The article reports that there is evidence that marijuana or other cannabinoids may benefit symptoms associated with certain clinical conditions such as glaucoma, nausea, inflammatory diseases, MS, and epilepsy. However, more research is necessary to confirm these findings, as well as to determine the most effective form of administration.

Since medical marijuana prescriptions issued to adults are a major source of recreational use by juveniles, states must develop an effective method of regulation, as well as education about the dangers of both inadvertent and commercial distribution for non-medical use. Anyone who reviews medical marijuana advertisements or talks to law enforcement officers about the level of therapeutics of many of such clinics, can only question whether the drug legalization is actually accomplishing a fraction of the benefits touted by its advocates.

Recently, I walked around Venice and Santa Monica beaches in southern California. The number and appearances of the “medical” marijuana clinics in the narrow streets leading to the beaches were strikingly non-medical to everyone I was with. The medical purpose of such businesses seemed like a joke. A local federal agent confirmed that the great majority of the large amounts dispensed were universally known to be used recreationally and were so ubiquitous as to be unenforceable. The genie was out of the bottle.

Twenty-two states have legalized marijuana use in some form or another. One can only hope that other states will pause in this trend and consider the mounting medical evidence of significant health and well being problems in so many different categories. Perhaps studies in the 22 states will demonstrate that the cost of these policies is so great as to demand reconsideration.

 

Supreme Court to Consider Warrantless Cell Phone Searches

 
 
By Ross Parker
ticklethewire.com

The U. S. Supreme Court will hear argument today on two cases involving warrantless searches of cell phones. The case is probably the most important and most difficult 4th Amendment case of the term. Lower courts are split on the issue, and the number and tone of the appellate briefs in the cases illustrate the future ramifications of the case in the Cyber Age.

In U.S. v. Wurie the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest. The California Court of Appeals went the other direction in Riley v. California, upholding the police search of a man’s cell phone when he was arrested on firearms charges. The search produced data linking him to a gang shooting, and he was convicted of attempted murder.

Warrantless searches of all materials on the person of one lawfully arrested have traditionally been upheld without serious controversy. Isn’t the cell phone just a 21st Century version of a personal notebook or photo album? That is why many, perhaps most, commentators are predicting that the conservative majority of the Court will hand down a decision sometime before the end of the term in June which upholds the law enforcement position in these cases.

However, several factors seemingly unconnected to traditional 4th Amendment theory make this a much closer question. First, everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of purposes. Second, the latest cell phone technology has an ever-expanding capacity to store all kinds of private information. Finally, the Court has shown an increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques found to be “unreasonable searches” without prior judicial authorization. Traditionally conservative Justice Anton Scalia has surprised many by his views in this area.

Prediction: 5-4 vote requiring warrants for cell phone searches incident to arrests.

More Info on the Downside of Smoking Marijuana Including Impact on Brain Structure of Young Adults

By Ross Parker
ticklethewire.com

A recent study by researchers from Northwestern University and Harvard University Medical School has concluded that even moderate use of marijuana by young adults affects the structure of their brains.

The study, published in the April 16, 2014 Journal of Neuroscience, found that the size and shape of the region of the brain involved in emotion and motivation were abnormal in these casual users compared to non-users. Further, the more an individual uses marijuana, the more pronounced these structural changes are.

The study is significant because most of the recent studies showing the effects of marijuana on the brain were performed with heavy rather than casual users. The study joins the increased amount of recent scientific and medical evidence that marijuana use, especially for young brains, has unhealthy side effects. As reported the last few months in this column, these reports have shown:

  • The tripling of calls to Poison Centers in states that have legalized marijuana in some form about young children who have ingested marijuana (University of Maryland, Center for Substance Abuse Research)
  •  Dramatic increase in the need for medical intervention for children in states that have decriminalized marijuana use (American College of Emergency Physicians)
  • The marijuana addiction rate for youth is 17%, three times that of adults (American Society of Addiction Medicine)
  • In medical marijuana states, one-third of the 12th graders report that one of their sources of supply is from adults with a medical marijuana prescription (University of Michigan, Institute for Social Research)
  • Increased use of marijuana by American teens and a sharp decline in their perception that marijuana use can be risky (Same source)
  • Use of marijuana during pregnancy affects the baby’s brain (Live Science)
  • Increased statistics of marijuana-related emergency room visits (DAWN)
  • Chronic use of marijuana may result in increased anxiety by down regulating the cannabinoid receptors in the brain (Vanderbilt University Medical Center in Neuron)

After years of very limited research on the medical effects of marijuana, this barrage of recent studies seems to be receiving little attention among state legislatures which are following the trend toward legalization which has changed the national culture in such a short period of time. Twenty years ago marijuana was illegal in all states in all forms. Today two states have legalized recreational use as well as numerous random municipalities, and 21 have authorized its “medical” use. Numerous states are considering similar bills, and the federal policy on enforcement has been altered dramatically by the present administration.

Pro-marijuana advocates are quick to point out their views on the harm of prohibition and the benefits of legalization. If there is to be a full and fair discussion on the future on this issue, the mounting scientific and medical evidence deserve full consideration.

 

Marijuana Legalization Triples Poison Calls for Young Children

By Ross Parker
ticklethewire.com

The data on the costs to children–both in human and monetary terms—in states which have legalized marijuana continues to mount.

Not only have medical studies shown serious health risks, increased hospital admissions, and more prevalent use by teenagers in those states, but now a study has shown that even younger children will also pay the price.

The Center for Substance Abuse Research out of the University of Maryland reported this week that the rate of Poison Center calls concerning unintentional pediatric exposure more than tripled in states where marijuana had been legalized in some form. Using information from the National Poison Data System, the study tabulated the number of calls from 2005 to the end of 2011 to U.S. poison centers involving children age 9 and younger.

In states which had legalized marijuana either for recreational or medical use prior to 2005, these numbers increased from 3.9 calls per million population in 2005 to 14.8 calls in 2011. States which had passed such legislation during the 2005-2011 period also had substantial increases in the number of calls to poison centers. States without such legislation showed no increase in the number of calls.

What the study means is that states which legalize marijuana in some form will have increased use by adults. When that happens, there will be more children who accidentally ingest marijuana and need medical advice or end up in a medical facility or hospital emergency room.

The authors of the study concluded that such potentially harmful exposures are likely to increase and more children will need medical care. They suggested the need for state legislation for childproof packaging, warning labels, and public education about the dangers of marijuana to children.

On a related note, Vanderbilt University Medical Center published a study in the magazine Neuron this week that cannabinoid receptors have been identified for the first time in the part of the brain involved in regulating anxiety and the fight/flight response. Researchers suggested that, although initial use of marijuana may act as a sedative in the effect on these receptors, chronic use could paradoxically increase anxiety by down regulating the receptors.

The question is whether state legislators who are considering legislation on legalization for adults as part of this trend are considering the inevitable costs to children.

 

Medical Societies Weigh in on Dangers of Marijuana to Children


By Ross Parker
ticklethewire.com

As the war of words heats up on the trend toward legalization of marijuana, two medical societies have issued their positions on the subject, particularly as it relates to the effect of the drug on teen agers.

As reported earlier, some medical studies have shown negative neurological effects of regular marijuana use on developing brains, particularly the high THC potency available in today’s market. A recent University of Michigan survey found a moderate increase of marijuana use by kids in the nation’s schools, as well as a strong downward trend in their perception that marijuana can be dangerous. The study also reported that one of the sources for one-third of the 12th graders who use pot was from adults who had a medical marijuana prescription.

Among the medical groups that are expressing concern over these developments and others are the American Society of Addiction Medicine (ASAM) and the American College of Emergency Physicians (ACEP).

Using NIDA studies ASAM indicated that the addiction rate for youth who use pot is 17%, almost triple that of adults. It also puts the number at 25-50% for those who use the drug on a daily basis. The Society opposes both the “medicalization” of marijuana and the legalization for recreational use.

The ASAM plans to discuss these and other related issues at a Medical and Scientific Conference, April 10-13 in Orlando.

The ACEP issued a recent report that states which have decriminalized marijuana have had a dramatic increase in the need for medical intervention for children. Likewise the call rate to poison centers has increased 30% in those states compared to no increase in states where there are no legalization laws.

The College is especially concerned about the dangers posed to children by marijuana edible products such as cookies and chocolates. Such products are attractive to children and can be eaten with no regard to the effects, especially of high dose products. ACEP has called for child-resistant packaging, warning labels and public education.

 

The “Good Old Days” of Law Enforcement

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.
 
By Ross Parker
ticklethewire.com
In a recent conversation in a Detroit watering hole in metro Detroit with past and present federal agents, the stories of the “good old days” sounded more like the ”bad young days.” The waitresses were, no doubt, rolling their eyes at our stories of how tough we had it compared to today’s incoming generation of law enforcement officers.

Well, thanks to Justin in Ft. Worth, a stellar example of Detroit federal agent alums, we can have some historical perspective in this recruitment poster for English policemen in 1839.

Walk 20 miles a day, 7 days a week in 12 hour shifts, with one unpaid holiday per year? Most of the guys I worked with could perhaps have handled such rigors. But—no talking to women and no sitting in public houses—that would have required a level of dedication beyond the ability of most of us.

 

Marijuana Use Among American Teens on the Rise

By Ross Parker
ticklethewire.com

The use of marijuana by American teens continues to increase. Unlike use of other drugs and alcohol, which are either decreasing or remaining stable, the use by 8th and 10th graders went up 1.3 and 1.8 % in 2013, according to the Monitoring the Future study conducted by the University of Michigan of 40,000 to 50,000 teen agers in 389 private and public secondary schools.

Even more important than this result is the sharp decline among teens in the perception that marijuana use is risky. During the preceding eight years the percentage of 8th, 10th, and 12th graders who see great risk from regular pot use has gone down from 74 to 61%, 66 to 47%, and 58 to 40%, respectively.

Another significant finding is that, during the years 2012 and 2013 in states where medical marijuana is legal, one-third of the 12th grade users say that one of their sources is another person’s medical marijuana prescription.

The most encouraging result of the study is that the use of “synthetic” marijuana is decreasing significantly, and the use of bath salts remains stable at a relatively low level. Moreover, teens increasingly report that the risk of these synthetics is great. This result seems to credit the work of DEA, local law enforcement and other sources to publicize the significant dangers of these drugs, as well as the speedy scheduling and aggressive enforcement activity.

Drug use in decline among teens include: narcotics (other than heroin), OxyContin, Vicodin, and most hallucinogens. Alcohol use is also down, the lowest in over two decades. Drugs that are essentially stable in use include: heroin, LSD, amphetamines, Adderall, methamphetamine, Ketamines and steroids.

The study was funded by research grants from the National Institute of Drug Abuse, part of the National Institutes of Health. It was conducted by research professors at the University of Michigan’s Institute for Social Research. 2013 was the 39th year that the study has been conducted. The results will be published in a volume of Monitoring the Future National Results on Adolescent Drug Use later this year.