Tipping the Scales for Lady Justice

Intro to Current Issues


For some time now I’ve been making pretty good money off of cases that I haven’t done enough to prevent.  Shame on me.  One who is in the business of representing the victims of the war on drugs also has a duty to try to reduce the number of victims.

With that self serving sanctimonious introduction, hopefully I’ve got your attention, for there is indeed a predator lurking at the watering hole—a predator that has produced a whole lot of business for me in the last couple of years.  Here’s how it works:

In the greater Seattle area, certain stores that are suspected of catering to marijuana growers are placed under surveillance.  If you get lucky, the folks who see you are just cops who will follow you home, investigate your life,  get a search warrant based usually on smell, and bust your garden.  After they bust your garden they will go after your assets.  Your home, your bank accounts, your stock accounts, your vehicles, your jewelry -- anything of value.  If you are not lucky, you will be followed home by someone who wants to rob you. 

There has been no evidence that any of the shopkeepers are involved. To the contrary—they are horrified.  There is nothing they can do to protect their customers.   Should they do anything to even remotely suggest that their products might be used for illegal purposes, they themselves get busted.  In most cases they only find out their shop is being watched if a customer or his/her lawyer lets them know after the fact.  But facts are stubborn things and this is one of them.  If you are breaking the marijuana laws, and even if you are a legitimate grower, keep this ever present danger in mind.  The grow shops are the water holes where the predators hang out.  You are the prey.


Marijuana is a drug of such enormous power that it has driven the government mad.

In these times of fear and terrorism, it’s puzzling to find that where the prosecution of marijuana offenders is concerned, no expense is too great for the government. Now the government is telling us “Smoke a Joint, Support a Terrorist.” With my apologies to my Canadian pot-growing “terrorist” friends, the answer is simple: “Fight Terrorism; Buy Homeland Grown.”
But I digress. . .

No allocation of valuable resources such as manpower, equipment, or jail space is beyond the reach of a police agency dedicated to crushing and fleecing anyone who comes close to pot. In my state, Washington, local law enforcement agencies think nothing of sending a dozen officers, and a large number of vehicles, including planes and helicopters, on a week long foray across the state and even into Oregon, just to bust a couple of pounds of pot. I have recently seen highly sophisticated investigations, utilizing National Guard airplanes and helicpoters, gps locators placed on vehicles, detailed investigation discovery packages involving pounds rather than pages of investigative materials. Despite the fact that money spent on domestic marijuana doesn’t reach the hands of terrorists, if recent cases this writer has seen are the example, marijuana interdiction in 2004 prioritizes marijuana right up there with terrorism. Stomping on the ants while the rhinos come over the walls? Maybe so. Meanwhile in many counties in Washington, methamphetamine accounts for 75% of all referrals to Children’s Protective Services. But no matter the relative harm, marijuana arrests are climbing towards one million a year – more than all other drugs and violent crimes put together. And, despite the clear fact that the war on marijuana is a footless fraud, no end appears in sight. So you’d better get ready.

Marijuana cases are different. You and your lawyer need to understand that marijuana prosecutions are different from any other criminal prosection for at least four reasons: First, no other type of law violation has spurred police to develop such intrusive investigative techniques or to habitually bully and terrorize an entire class of harmless citizens; second, when you fight a marijuana prosecution it is the defendant, not the government who occupies the moral high ground; and third, when you try a pot bust case, the only victim in the courtroom is the defendant, which means that fourth Marijuana cases make good appellate law because the court can often free the defendant on constitutional grounds without turning loose a dangerous criminal.

They are also different because America’s fastest growing indoor hobby/cottage industry has provoked law enforcement to respond aggressively with intrusive investigation techniques – some employing space-age technology and many bringing the eyes, ears and noses of law enforcement into the home, a place American citizens have long considered to be at the hard core of the right to privacy. Remarkably, enforcement against indoor cultivation has become an issue of primary importance now that the Drug Enforcement Agency and local law enforcement have prioritized the “war” on domestic marijuana. In the State of Washington, for example, where the large majority of the marijuana, Washington's number one cash crop, is grown indoors, a well-publicized $5000 reward awaits informants who will turn in marijuana farms. Remarkably, no advertised reward encourages those who turn in murderers, rapists, robbers, child molesters or criminals who prey on the vulnerable. Even dealers of the harder drugs have no advertised bounty on their heads. How can this be? Marijuana is not a dangerous drug. Its use is not a danger to society. Extreme measures to enforce the marijuana laws are not justified.

The resultant pressures on the privacy of the home are difficult to reconcile with traditional American values such as tolerance, liberty, or pursuit of happiness. But, privacy is a fragile right. No one ever got elected for defending it. It comes as no surprise that it retreats in the face of three decades in which everyone has indulged the drug warriors. More alarmingly, however, as the following discussion will explain, even the usually robust rights of private property are no longer secure. The entire U.S. Constitution has retreated in the face of the assault. Any defense attorney – for that matter, any reasonably industrious federal agent – knows that for those who depend for protection upon the U.S. Constitution, few places remain that are truly private. In many state courts, however, there is room for creative and aggressive response to the war on privacy. Indoor marijuana gardens are a relatively new phenomenon. Many of the intrusions they provoke have not yet been tested under state constitutional theories. Where there has been a test, states have often found enhanced protection in their own constitutions. No defense attorney practicing in state court can afford to overlook those few remaining opportunities to have someone in a robe say the word “suppressed.”