A Colorado judge has ordered the return of marijuana, paraphernalia and a grow light to a medical marijuana patient. The items were seized during a search by a federal-state drug task force and criminal charges were dismissed. The defendant filed for the return of the seized property, and following a hearing yesterday, the Judge ruled in his favor:

Under a Colorado law that voters approved in 2000, people suffering from debilitating medical conditions, such as cancer, HIV/AIDS, glaucoma, and chronic severe pain, are allowed to grow and smoke marijuana. Colorado is one of eight states that allows medicinal marijuana use. Nord, who has battled kidney cancer, diabetes, a lung disease, and other illnesses, is listed with the state's Medical Marijuana Registry program.

But according to federal laws, none of that matters; marijuana is an illegal drug for everyone.

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed for you.

These warnings and rights have been the law in this country since 1966 when the Supreme Court decided Miranda v. Arizona. Yet the Court has revisited the opinion fifty times since then. Why?

In 2000, the Supreme Court refused to overturn the decision. Yet, this week, it will revisit three cases, from Missouri, Colorado and Nebraska, and a verdict for the police in any one of them will sound the death knell for Miranda.

None of the three cases will overturn Miranda directly.

The new cases pose a different and still unresolved question: What happens if the police either deliberately or inadvertently do not warn a suspect of his or her rights before questioning? If there is no penalty for violating the Miranda rights, police will not follow them, the rule's defenders say.

For all practical purposes, Miranda will be a dead letter" if the justices side with police and prosecutors in all three cases, said Stephen Schulhofer, a law expert at the Brennan Center for Justice in New York. University of Michigan law professor Yale Kamisar agrees. "They would be overruling Miranda without saying so," he said.

The first case , Missouri v. Siebert, will decide whether police can question first and warn later. At issue is the dubious police practice of two-part interrogations used to deliberately sneak around the Miranda requirement:

The police questioned Patrice Seibert without a Miranda warning until they got her to make an admission. Then, after a break long enough to claim that a new interrogation had begun, they gave her a Miranda warning and resumed questioning. They referred to her prior admission and got her to acknowledge it.

The Missouri Supreme Court threw out the confession in the case:

Two-part interrogations allow the police to put off the Miranda warning until the hard part is over. If police officers can do this, the court concluded, Miranda will be "meaningless."

The second case "tests whether police and prosecutors may use physical evidence, such as a gun or drugs, despite a Miranda violation."

The third case involves the police questioning an accused after he had been charged without giving him Miranda warnings or allowing him to consult with his lawyer before deciding whether to answer them.

For the facts of the three new cases along with historical context, we recommend Richard Willig's article in USA Today.

For the reasons the Supreme Court should refuse to weaken Miranda, we recommend Don't Make Miranda Meaningless by former FBI Director William Sessions (under Reagan and Bush I) and James E. Johnson, the Treasury Department's undersecretary for enforcement during the Clinton administration.

In February, we wrote about cancer patient Steve Kubby, a transplanted Calfornian and medical pot activist, who was seeking aslyum in Canada. Kubby, a former California Libertarian gubernatorial candidate, was diagnosed with malignant adrenal gland cancer in the early 1970's. "In the span of a few years, he underwent four surgeries, chemotherapy and radiation. Nothing seemed to stop his steady decline." Except medical pot. Then he got charged with a pot offense in California, convicted and ordered to do 120 days. He fled to British Columbia in 2001 to avoid the jail sentence. He filed a refugee claim to avoid being deported from Canada to the U.S., and sought asylum.

Kubby has now lost his bid for asylum.

Canada's Immigration and Refugee Board ruled that Steve Kubby did not have a well-founded fear of being persecuted or tortured, or that there was any risk to his life, if he returned to his home state of California. Kubby had said the 120-day jail term he was ordered to serve in California on minor drug charges would be a death sentence. He claimed if he did not smoke pot every hour, he would die from complications from adrenal cancer.

The opinion is here.

The Supreme Court granted cert today on one issue in No. 03-167, United States v. Benitez - regarding guilty pleas.

"Whether, in order to show that a violation of Federal Rule of Criminal Procedure 11 constitutes reversible plain error, a defendant must demonstrate that he would not have pleaded guilty if the violation had not occurred."

[link via ScotusBlog]

Update: Here is what the case is about and what's at issue in non-lawyer terms.

The article contains an interesting statistic from Solicitor General Ted Olson who filed the Government's cert petition: 95% of all federal convictions resulted from guilty pleas last year.

Attorney General John Ashcroft may be crowing about the sentencing of the Buffalo Six (Lackawanna) defendants this week, but perhaps not for long. The 9th Circuit Court of Appeals today dealt a serious blow to the darling of the Justice Department's terrorism nursery--the law prohibiting providing material support to a terrorist organization. It's an issue we think is likely to reach the Supreme Court.

In an opinion written by Judge Harry Pregerson, the 9th Circuit ruled unconstitutional a portion of the "providing material support to terrorist organization" provision of the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”). The law was enacted under Clinton following the 1995 Oklahoma City Bombing.

Under the Act, [8 U.S.C. § 1189 and 18 U.S.C. § 2339B], the Secretary of State may designate an organization as a “foreign terrorist organization.” One who provides material support or services to such an organization commits a crime that is punishable by up to life in prison.

The issue in the case:

...whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization’s unlawful activities leading to its designation.

The ruling:

...we construe 18 U.S.C. § 2339B to require proof that a person charged with violating the statute had knowledge of the organization’s designation or knowledge of the unlawful activities that caused it to be so designated. In addition, we reaffirm our decision in Humanitarian Law Project II that the prohibition on providing “training” and “personnel” in § 2339B is impermissibly
overbroad, and thus void for vagueness under the First and Fifth Amendments.

...The language of 18 U.S.C. § 2339B does not in any way suggest that Congress intended to impose strict liability on individuals who donate “material support” to designated organizations.

....we believe that when Congress included the term “knowingly” in §2339B, it meant that proof that a defendant knew of the organization’s designation as a terrorist organization or proof that a defendant knew of the unlawful activities that caused it to be so designated was required to convict a defendant under the statute.

A Colorado judge has struck down the state's school voucher law. Denver District Court Judge Joseph Meyer said the idea behind the law was "laudable" but it violated the Colorado Constitution because it "run[s] afoul fo the principle of local control."

Colorado's law was the first enacted in the country following the Supreme Court's ruling approving vouchers last year.

Opponents object to giving state support to religious schools and contend the plan will undermine public education by siphoning off students and the tax dollars they bring.

That's our position.

Five Seconds, Ten, Fifteen, Twenty... Here comes the battering ram:

Police officers executing a search warrant do not violate constitutional rights by waiting only 15 to 20 seconds after knocking and announcing their presence before using force to enter a suspect's residence, the U.S. Supreme Court ruled on Tuesday.

The case stemmed from an incident in the middle of the afternoon on July 15, 1998, when officers from the Las Vegas Police Department and the FBI executed a warrant at the apartment of LaShawn Lowell Banks.

The officers knocked on the front door, announced a "police search warrant" and waited 15 or 20 seconds. Hearing no response, they used a battering ram on the front door to enter the small apartment.

Banks said he did not hear the officers knock and announce their presence because he was in the shower. The officers found him standing by the bathroom, having just come out of the shower.

Two welcome new court rulings, one in Michigan and one in Pennsylvania, show juveniles aren't always second class citizens.

In Pennsylvania, the state Supreme Court struck down "suspicionless" school drug testing, saying the goal of stopping drug use does not justify them.

The theory apparently is that, even in the absence of any suspicion of drug or alcohol abuse, it is appropriate to single these students out and say, in effect: 'Choose one: your Pennsylvania constitutional right to privacy or the chess club,' " Justice Ronald D. Castille wrote in a 32-page opinion.

"What lesson does a program targeting the personal privacy of some but not all students and lacking both individualized suspicion or any reasoned basis for a suspicionless search teach our young?" Castille wrote.

In Michigan, the court ruled police cannot ask juveniles to submit to breath tests without a search warrant. The First Amendment trumps any state interest in preventing underage drinking.

The right to be left alone in public places ranks high on the hierarchy of entitlements that citizens in a free society have come to expect, at least in the context of citizen-police encounters," wrote [Judge] Lawson, who presides over the Eastern District's court located in Bay City.

Lawson said the city's ordinance is designed to gather evidence of crime, and concludes that "the ordinance's blanket authorization of warrantless searches is repugnant to the Fourth Amendment to the Constitution."

[links via How Appealing]

The Alaska Court of Appeals last week refused to overturn a decision allowing possession of marijuana for personal use:

The Alaska Court of Appeals has rejected a request by the state to reconsider a decision allowing adults to possess small amounts of marijuana for personal use.

In a ruling Friday, the court denied Alaska Attorney General Gregg Renkes' petition for a rehearing in the case of David Noy, a North Pole man who was arrested in 2001 after he was found with marijuana in his home.

The state now will seek review by the Alaska Supreme Court. Among the grounds: pot is more potent today than it was when the law was enacted.

The ultimate goal, Guaneli said, is for the state to be able to prove to a court that marijuana is stronger and is causing more harm in Alaska than back when the 1975 Ravin decision came out. Then the state might be able to show it has a strong enough interest in making it illegal to override the constitutional questions.

For background on this legal fight, go here. [hat tip: Jacob Sullum at Reason]

The AP reports the Judge's decision as a draw. We'd call it a win for Rosie. She got sued for $100 million and has to pay zero. She may even get her legal fees covered.

The New Hampshire Supreme Court has decided that gay sex is not adultery. An interesting decision, and a correct one in our view, holding that judges should not be the arbiter of what is or is not an intimate act. The opinion is here. [link via How Appealing.]

Part of the problem in New Hampshire is that adultery is not defined in the state's divorce laws. So the court looked up "adultery" in Webster's dictionary and found that it mentions intercourse. And it found an 1878 case that referred to adultery as "intercourse from which spurious issue may arise."

But the majority did not want the New Hampshire courts to step onto the slippery slope of defining which sex acts outside of intercourse might amount to adultery. "This standard would permit a hundred different judges ... to decide just what individual acts are so sexually intimate as to meet the definition," the court said.

The South Dakota Supreme Court ruled Thursday that "medical necessity" is not a defense to a possession of marijuana charge. A quadriplegic who used marijuana to attempt to treat spastic tremors and pain throughout his body attempted to invoke the necessity defense when arrested for possession at a local jazz festival. Based on construction of South Dakota's statute, the court unanimously ruled the defense did not apply. The case is State v. Matthew Ducheneaux and here is the opinion. [Thanks to Tim of Progressive Prairie for the link]

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