Published on The Weekly Standard (http://www.weeklystandard.com). Several weeks ago in San Francisco, Attorney General Eric Holder told the American Bar Association that our criminal justice system is too harsh, too costly, and gives convicted African-American males sentences 20 percent longer than others for similar crimes.
Chicago Tribune -
Aug. 30, 2013
Enrique "Kiki" Camarena, a special agent with the U.S. Drug Enforcement Administration, left the U.S. Consulate in Guadalajara, Mexico, the afternoon of Feb. 7, 1985, to have lunch with his wife. He was kidnapped by several police officers working under the direction of Rafael Caro Quintero, head of the Guadalajara drug cartel. Camarena had caused problems for Caro Quintero by locating secret marijuana fields and millions of dollars of drug money that was frozen in U.S. banks. Camarena was taken to a private residence in Guadalajara, tortured for two days and killed by a blow to his skull with a tire iron.
On March 26, 2013, the Supreme Court decided Florida v. Jardines, No. 11-564,a case involving the issue of whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment. Justice Scalia delivered the opinion of the Court in which Thomas, Ginsburg, Sotomayor, and Kagan joined, and held that the investigation of the area surrounding Jardines’ home, while remaining outside the house awaiting a search warrant, is was a search within the meaning of the Fourth Amendment.
In this case, on November 3, 2006, Detective Pedraja of the Miami-Dade Police Department received an unverified "crime stoppers" tip that the home of Joelis Jardines, the respondent-defendant, was being used to grow marijuana. On December 6, 2006, at 7 a.m., detectives approached Jardines’s residence and watched the home for fifteen minutes. There were no vehicles in the driveway, the blinds were closed, and there was no observable activity. After fifteen minutes, the dog handler arrived with the drug detection dog, Franky. The handler placed the dog on a leash and accompanied the dog up to the front door of the home.
On the scene during the dog sniff test were multiple police vehicles, multiple law enforcement personnel, including narcotics detectives, the dog handler and dog. The entire on-scene government activity lasted for hours and the dog alerted to the scent of contraband. The handler informed the detective of the positive alert for the odor of narcotics found by the dog. Then, the detective approached the front door for the first time, and smelled marijuana. A detective also observed that the air conditioning unit had been running constantly for fifteen minutes or so, without ever switching off, which the detective explained in his experience that in a hydroponics lab for growing marijuana, high intensity light bulbs are used which create heat and causes the air conditioning unit to run continuously without cycling off.
Based on the above information, the detective prepared an affidavit and applied for a search warrant, which was issued. During the search, law enforcement confirmed that marijuana was being grown inside the home. The defendant was arrested. At the trial court, the defendant moved to suppress the evidence seized at his home.
The trial court granted Jardines’s motion to suppress the evidence, and the State appealed. The district court reversed, and Jardines sought review at the Supreme Court of Florida. The Supreme Court of Florida concluded that the police had engaged in a Fourth Amendment search which required probable cause, not reasonable suspicion, as the proper evidentiary showing of wrongdoing that the government must make prior to conducting a dog “sniff test” at a private residence. The State then petitioned for writ of certiorari at the U.S. Supreme Court. On January 6, 2012, the Supreme Court granted certiorari.
In the decision, the Supreme Court began its analysis with the baseline that the Fourth Amendment protects “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion” and this protection extends to “[t]he area ‘immediately surrounding and associated with the home.’” This area is known as “the curtilage” and is “part of the home itself for Fourth Amendment purposes.” Here, the Court determined that the officers entered the curtilage when it entered the front porch.
Moreover, the Court examined that the officers’ entry was not explicitly or implicitly invited. Although the Court noted that officers need not ‘shield their eyes’ when passing by a home on public thoroughfares, but cautioned that “[a] police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is ‘no more than any private citizen might do.’” But, the scope would be limited to a particular area and a particular purpose because there is no customary invitation to enter the curtilage to conduct a search.
Further, the Court held that the government’s use of a trained police dog to investigate the immediate surroundings of Jardines’s home, is a search within the meaning of the Fourth Amendment. Thus, the investigation took place in a constitutionally protected area because the front porch is the “classic exemplar” of an area adjacent to the home and “to which the activity of home life extends.” On this basis, the Court affirmed the lower court’s decision to suppress the evidence found in Jardines’s home.
The U.S. Supreme Court is expected to issue its decision by next summer. FEDagent will keep you posted as the case develops. The case is Florida v. Jardines, No. SC08-2101. To review the lower court’s decision, click here.
WASHINGTON – The nation’s law enforcement establishment isn’t pleased with the Obama administration decision to ease the enforcement of federal drug laws in states that have legalized the use of marijuana.
Jan 23 (Reuters) - U.S. treasury and law enforcement agencies will soon issue regulations opening banking services to state-sanctioned marijuana businesses even though cannabis remains classified an illegal narcotic under federal law, Attorney General Eric Holder said on Thursday.
Holder said the new rules would address problems faced by newly licensed recreational pot retailers in Colorado, and medical marijuana dispensaries in other states, in operating on a cash-only basis, without access to banking services or credit.
The Obama administration recently released departmental “guidance” saying banks may “provide financial services to marijuana-related businesses operating legally under state law.” Let’s be clear: No federal trump card exists that can erase bank liability for handling of drug money.
Put differently, there is no conceivable way to remove criminal and civil liability for complicity in money laundering by departmental “guidance.” Thus, any bank that wants to avoid federal, state and private liability has only one choice: Say no to drug money. Here is why.