UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

Image from public domain.

Marijuana is a weed (thus, one of its nicknames) that can grow wild on one's property without the landowner even knowing it, at least if multiple acres are involved.

Consequently, in 1978, the Kansas Court of Appeals wisely decided as follows:

"As may be seen, there are only two relevant factual allegations in the affidavit [for a search warrant]: (1) the sheriff and others had seen marijuana growing in defendant's corral; and (2) marijuana had recently been harvested by someone in the area near defendant's farm home. From these two facts the magistrate was asked to draw the inference that marijuana was 'probably stored in one of the buildings on the farmstead.' We agree with the trial court that the inference may not properly be drawn.

"First, the presence of marijuana growing in the corral does nothing to show the presence of cut marijuana in the barn. We take judicial notice of the fact that marijuana grows wild throughout most of Kansas. [Did Dorothy know that?] There is no indication in the affidavit that the growing marijuana was cultivated or that any of it had ever been harvested, or that the corral was in such use that defendant was necessarily charged with knowledge of its presence.

"Second, the fact that unknown persons had recently harvested marijuana 'in the area near' defendant's home gave no indication that defendant was the harvester. The affidavit says nothing about how near defendant's home the harvesting took place, whether it was accessible to casual passersby, who else lived close to the harvested crop, or who owned the land on which it grew.

"In short, there was absolutely nothing to tie defendant to the harvested marijuana except a vague allegation of geographical proximity and the presence of growing but unharvested marijuana in his corral. We agree with the trial court that these facts give rise to at best a suspicion, and do not show probable cause.

"The State also suggests that the defendant did not have standing to raise the search and seizure issue because the farm on which he lived was actually owned by a corporation. This issue is being raised for the first time on appeal and will not be considered. In addition, the sheriff's affidavit itself describes the premises to be searched as 'the farmstead occupied by Jerry Brown,' and the possession charge must necessarily depend on defendant's being in possession of the premises where the marijuana was found. Such possession was enough to give him standing.

"Affirmed."

State v. Brown, 2 Kan. App. 2d 379, 579 P.2d 729, 730-31 (1978).

Thanks to a fellow criminal defense listserv member for bringing this pithy and wisely-decided court case to my attention. Jon Katz.

Burnt marijuana has a pungent and funky smell that exposes marijuana smokers to police searches. Appellate courts repeatedly have given cops the green light to conduct warrantless searches upon smelling burnt marijuana. Defending against such searches calls for attacking the totality of circumstances, including how strong was the odor, from where it emanated, and the officer's personal knowledge of marijuana smell (how on earth can a law-abiding police officer know whether s/he's smelling marijuana or another substance?). It is particularly time to pounce on the search and the officer's credibility when the cop claims to have searched due to marijuana smell but is unable to show any recovery of any remnants of marijuana or marijuana paraphernalia. Moreover, when unburnt, marijuana can be very difficult to recognize by smell.

Praised be the Utah Supreme Court, which on March 9, 2007, refused to automatically permit warrantless home search upon smelling burnt marijuana. In Utah v. Duran, the Utah Supreme Court stated:

"While no one disputes that the odor of burning marijuana was evidence of a 'crime or contraband' in the trailer, the only basis upon which the police could conclude that Ms. Duran would 'destroy' the evidence before a warrant could be obtained was their belief that she would 'smoke it up.' Unlike Mr. McArthur,who knew that the police were onto him, Ms. Duran did not know that law enforcement officers were aware of the presence of marijuana in the trailer until they broke through the door. Most significantly, there is no indication that the law enforcement officers engaged in any effort, much less a reasonable one, to reconcile their law enforcement needs with the demands of personal privacy. In fact, to the extent that the officers engaged in any assessment of competing interests related to the acquisition of a warrant, they balanced their desire to avoid the inconvenience of seeking a warrant against Ms. Duran’s privacy interests and concluded that convenience was more important. We cannot countenance this attempt at 'reconciliation' and at the same time keep faith with our duty to interpret and apply fundamental constitutional guarantees. We therefore affirm the court of appeals."

Of course, when police smell burnt marijuana, they see an opportunity not only to search for marijuana and marijuana paraphernalia, but to search for all contraband, including other drugs and handguns. Duran helps rein in police excitement to search upon smelling burnt marijuana. Jon Katz. 

Image from the Government Printing Office's website.

Violence begets violence. Consequently, the fewer weapons in the courtroom (other than trial exhibits) the better.

However, a Texas legislator has introduced a bill that "would add deputy prosecutors who handle felony cases to the list of individuals, including judges and district attorneys, who can bring a concealed weapon into court."

Yes, prosecutors (and sometimes criminal defense lawyers for that matter, among others) are at real risk of violence from some criminal defendants and their supporters. However, letting prosecutors pack pistols in the courtroom only helps escalate the cycle of violence rather than helping to break the cycle. Moreover, it is hard to expect that a prosecutor with limited handgun safety experience will have sufficient time and opportunity to become sufficiently trained and retrained so as to trust the prosecutor with a handgun in the highly-charged atmosphere of the courtroom. Felony prosecutors ordinarily are too occupied with their cases to be finding the time to know how to use a handgun properly, not to fire one with a hair-trigger attitude, and not to hit innocent bystanders in a crowded courtroom while their attention is focused not on courtroom security but on winning their case.

If the prosecutor is carrying a handgun, I will not want the prosecutor coming near defense counsel table, lest my client feel threatened by the approach of an armed opponent.

My client's knowledge that the prosecutor -- just a few feet away -- is packing a pistol will not assist my client's reaching calm before the jury, will not assist my client in conferring with me during the trial, and, therefore, will deprive my client of the Sixth Amendment right to a fair jury trial and to effective assistance of counsel. Furthermore, I want a prosecutor to be as receptive as possible when we need to discuss on-the-spot issues in the courtroom (e.g., stipulations to exhibits, or renewed settlement negotations); a concealed handgun just gets in the way of such open and effective communications.

Seeing that prosecutors are public servants charged with serving justice, they should not be packing pistols in the courtroom, but instead should be taking the critical road to teaching and achieving peace, even though the peaceful path can be more arduous, dangerous, and slower than firing a bullet against an actual or perceived assailant. If people want to be able to physically defend themselves, effective non-lethal options abound. However, nothing beats knowing how to defuse and de-escalate a dangerous situation with words (and silence) and with physical withdrawal from the dangerous situation.

Even though I advocate robust Second Amendment rights, I applaud when people make a personal choice not to own or use handguns. I do not buy the view of the NRA convention attendee who urged that the best way to show my child I love him is to be armed at home. The best way for me to show I love him is to hug him in my arms literally and figuratively, and to live that way every minute of the day. Jon Katz.

Bill of Rights. (From the public domain.)

Will .xxx be added as an Internet domain? This Friday, ICANN (Internet Corporation for Assigned Names and Numbers) will decide this question at its Lisbon meeting.

I remain as opposed to adding a .xxx domain today as I did three years ago when the Today Show interviewed me on the matter. I strongly believe that such a move will make it more likely to increase efforts unconstitutionally to censor adult entertainment, by first making the .xxx domain a voluntary venue followed by government efforts to force sexually explicit material into a .xxx domain followed by laws censoring and criminalizing material from the .xxx domain.

The Free Speech Coalition and I agree on this issue. (I am the founding past president of the Free Speech Coalition of the District of Columbia, Maryland and Virginia, Inc.; the FSC is a trade association for the adult entertainment industry.) As it turns out, some religious groups oppose the .xxx domain, having an expectation that such a domain will increase the availability of sexually explicit material on the Internet.

The First Amendment protects the production, distribution, and possession of sexually explicit material that is not obscene and is not child pornography. The .xxx domain seems to have little support from adult websites. Consequently, the only effective purpose of such a domain would be to lead down the path to censorship, which is an illegitimate purpose for a .xxx domain.

Among the avenues for expressing opposition to adding the .xxx domain are (1) to contact ICANN directly and (2) to sign onto the .xxx domain opposition page at http://www.fightthedotxxx.com, by contacting brandon@fightthepatent.com. The Free Speech Coalition's website has additional information links on the issue. Jon Katz.