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This Surprising State Could Be the Next to Legalize Marijuana [FEATURE]

Wed, 08/15/2018 - 21:48

Much attention this year has been focused on marijuana legalization efforts in state legislatures, particularly in the northeast and mid-Atlantic states, but unless Albany and Annapolis and Trenton get their acts together in a hurry, they could be upstaged by a prairie upstart: North Dakota.

[image:1 align:left caption:true]North Dakota Secretary of State Al Jaeger announced Monday that a marijuana legalization initiative sponsored by the grassroots group Legalize ND has qualified for the November ballot. The group had handed in more than 17,000 raw signatures last month and needed 13,452 valid voter signatures to qualify. On Monday, Jaeger reported 14,637 signatures were valid.

"The Legalize ND campaign was able to successfully channel the grassroots enthusiasm for recreational marijuana," said Legalize ND chairman David Owen.

Nine states and the District of Columbia have legalized marijuana since 2012, but all of those states have been in the West or the Northeast. This year, with marijuana legalization on the ballot in Michigan as well as North Dakota, legal weed could make a heartland breakthrough.

The North Dakota initiative has some unique features. Here's what it would and wouldn't do:

  • It would legalize marijuana -- in all its forms -- for people 21 and over by removing marijuana, THC, and hashish from the state's controlled substances schedules.
  • It would provide for the expungement of criminal convictions for anyone convicted of a marijuana-related crime that would be legal under the measure.
  • It does not set any limits on how much marijuana people could possess or how many plants they could grow.
  • It does not create a framework for regulated marijuana sales nor does it set any taxes. Creating a system of taxed and regulated marijuana commerce would be up to the state legislature.

It's only been two years since North Dakota voters approved a medical marijuana initiative, and the state Health Department is still in the process of setting up a system for producing and distributing the drug. That same year, marijuana legalization supporters came up short on signatures to get on the ballot, but they persevered, and here we are.

North Dakota is a deep red state -- Donald Trump got more than twice as many votes as Hillary Clinton in 2016 -- but the only poll done so far has the initiative leading. The June poll, commissioned by Legalize ND and conducted by the Florida-based Kitchen Group, had the initiative winning 46 percent to 39 percent, with 15 percent undecided.

That's good but not great news for Legalize ND. Yes, the initiative is leading, but the conventional wisdom among initiative and referendum watchers is that campaigns should be starting off with at least 60 percent support -- the assumption being that inevitable organized opposition is going to eat away at support levels in the final weeks of the campaign.

And there will be organized opposition. The North Dakota Sheriffs and Deputies Association passed a resolution in May opposing legalization and, now that the initiative has made the ballot, is meeting this week to plot strategy to defeat it.

Association president Pat Rummel, the Billings County sheriff, told the Associated Press this week law enforcement worried about potential problems such as impaired driving, more domestic disputes, and more strain on mental health and addiction treatment facilities.

"We don't have enough facilities to take care of these people," he said. "That's going to be a huge impact, too. Where do we put all these people that need to be into treatment?"

The national anti-legalization group Smart Approaches to Marijuana will also join the effort to defeat the initiative, the group's leader, Kevin Sabet, told the AP. "Our nation is dealing with a five-alarm fire of addiction right now; the last thing we need is more states to throw gasoline on it by promoting more drug use," he said.

That's the tenor of the opposition arguments so far. The question is whether North Dakota voters will still be swayed by such arguments. We'll find out in November.

This article was produced by Drug Reporter, a project of the Independent Media Institute.

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Why Marijuana Will Play a Major Role in the Next Two National Elections [FEATURE]

Thu, 08/02/2018 - 03:41

Last week, the San Jose Convention Center hosted the National Cannabis Industry Association's (NCIA) 2018 Cannabis Business Summit and Expo. More than 7,000 marijuana industry players and hopefuls crammed into exhibition halls and conference rooms for the three-day confab, located squarely in the heart of the world's largest legal marijuana market -- California.

[image:1 align:left]The variety of stuff on display was mind-boggling: Armored cars, safes, "California compliant" marijuana delivery vans, multi-thousand-dollar extraction devices of gleaming metal and shining glass, lighting systems, cooling systems, myriad forms of packaging, business management systems, POS systems, cannabis industry talent headhunters, greenhouses, modular grow fixtures, insurance companies, law firms, real estate firms -- vegan CBD gummies -- and much, much more. And while a few tie-dyes could be spotted in the crowds, they were few and far between.

While for most attendees the expo was all about business, the legal marijuana business still has to ponder the specter of federal marijuana prohibition actually being enforced. And even at the state level -- where the industry can make money -- it is still constrained by the annoying fact that adult use marijuana is only legal in nine states and the District of Columbia. One panel of experienced marijuana watchers zoomed in on the politics of pot law reform to try to divine what the near future holds -- not so much for the industry, but in terms of consolidating the political victories that have already seen marijuana move from the back alleys to, well, shiny big city convention centers.

The discussion among panelists NCIA director of governmental relations Mike Correia; Jolene Forman, staff attorney for the Drug Policy Alliance; and John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in governance studies at the Brookings Institute, covered a variety of topics and sketched the outlines of what pot politics could look like and achieve between now and the 2020 elections.

Federal Legislation

DPA attorney Forman pointed to three pieces of federal marijuana legislation:

  • The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, S. 3032, sponsored by Sen. Elizabeth Warren (D-MA) with five Republican and four Democratic cosponsors. The bill would modify the Controlled Substances Act so that it would not apply to people acting in compliance with state laws in states where it is legal.
  • The Marijuana Freedom and Opportunity Act, S. 3174, sponsored by Senate Minority Leader Chuck Schumer (D-NY). The bill would federally decriminalize marijuana by removing it from Schedule I of the Controlled Substances Act.
  • The Marijuana Justice Act, S. 1689, sponsored by Sen. Cory Booker (D-NJ) and cosponsored by a virtual who's who of Democratic 2020 presidential contenders, including Sens. Kirsten Gillibrand (D-NY), Kamala Harris (D-CA), Bernie Sanders (I-VT), and Elizabeth Warren (D-MA). It would remove marijuana from Schedule I of the Controlled Substance Act and eliminate federal criminal penalties for marijuana commerce.

While both the Schumer bill and the Booker bill would decriminalize marijuana, the STATES Act, which would only apply in places it's already legal, is more likely to gain traction, said Forman, a position seconded by Correia.

"The STATES Act is most likely to move," said Correia, who spends his days haunting the corridors of power on Capitol Hill as he lobbies for the industry. "Congress is incremental."

Movement could come faster if Democrats take the House or Senate, he said. "Maybe the Democrats will be more aggressive," Correia suggested, drawing a comparison with movement on gay and lesbian issues in recent years.

Not so fast, said Hudak, noting that key congressional committee chairs have bottled up marijuana bills so far. "Until both parties stop putting in foes of reform in leadership positions, there will be no progress," he said. "And it's not just the GOP." (Until a few months ago he might have been referring to Sen. Dianne Feinstein, who represents the world's largest legal pot market but who only dropped her opposition to legalization last May in the face of a primary challenge and is only beginning to shed last century's prohibitionist ideology.)

There is no reason for Democrats to put enemies of reform in leadership positions, Hudak said. "Cannabis is already a Democratic core value."

"Marijuana legalization could pass Congress right now," Correia argued, "but it doesn't get any hearings; it doesn't get any votes."

If Congress Fails to Act

DPA's Forman explained that while it is now clear that states have the right to not criminalize marijuana and not enforce federal prohibition, a hostile Justice Department could still potentially wreak havoc.

"What is untested in the courts is whether federal preemption could block regulation," she said. In other words, it's possible that the Justice Department could blow up states' ability to tax and regulate the industry.

Forman noted that medical marijuana states are currently protected from Justice Department interference by the repeated passage of amendments to spending bills blocking the DOJ from using its funds to go after medical marijuana where it is legal.

"We need the same for adult use," she said.

Without legislation protecting marijuana, "the executive branch can do things, it could be more aggressive," said Hudak. But he added that doing so would have a price. "That could affect the department's working relationship with the states," he warned.

Correia thought Justice Department meddling was unlikely, despite Jeff Sessions' druthers. "It makes zero sense politically to interfere," he argued, pointing to marijuana's popularity in opinion polls.

Hudak pointed out a possible flip side to a hostile executive power. "A reform-minded president could do a lot," he said, perhaps thinking of the Obama administration's Cole memo laying out how federal prosecutors would lay off legal marijuana in the states. Despite Sessions having nullified the Cole memo, it still seems to be largely the approach of the land.

The 2018 Midterms

"This is an exciting year for cannabis policy politics," said Hudak, pointing to the example of Texas, where progressive Democratic challenger and legalization advocate Rep. Beto O'Rourke is closing in on incumbent Sen. Ted Cruz (R).

"Beto is getting close to Cruz, and the whole time, he's screaming about his support for cannabis reform. That's transformational," he said. "Politicians lag behind; they've been terrified of this issue. Now it's politically beneficial. If you're against cannabis, the best thing to do is shut up about it. Nobody is with you."

It's still an uphill battle in Texas, though. Cruz is leading O'Rourke by 8.4 points in the Real Clear Politics average of polls. But that's only half as much as Cruz's 16-point victory in his 2012 Senate race, and O'Rourke has three more months to move up. And just today, a new Texas Lyceum poll had Cruz leading only 41% to 39%, well within the poll's margin of error.

According to Correia, trying to work with Republicans on Capitol Hill has led to lessons learned: "We see no point in trying to work with the GOP any longer," he said. "We'll be giving money to challengers in competitive races. The Democrats are thinking about this; they will run on marijuana."

The 2020 Election

It looks like marijuana is going to be a popular issue in 2020 -- or at least the people thinking about running for the Democratic presidential nomination seem to think so.

"Potential Democratic candidates are getting their names on big pot bills," Forman noted.

Marijuana is also likely to be on state ballots in 2020, and that will be good for Democrats, said Hudak.

"There will be more initiatives, and those drive Democratic turnout," he argued. "In 2012, Democrats in Colorado voted for cannabis -- and for president, too. Democratic politicians are seeing this."

But Correia said the current president could be a wild card here (as in so many other places): "Trump might just decide to steal the issue, to take it off the table."

Given that Trump has signaled support for the STATES Act, and given Trump's willingness to adopt any position if he thinks it brings him political gain, that's not impossible. And it would take some immeasurable oomph out of Democratic sails.

The Next States to Legalize

Michigan will vote on a legalization initiative in November, and there will be efforts in Arizona and Ohio in 2020, the panelists said. But grassroots initiatives could also bubble up in places like North Dakota and Oklahoma, both of which saw serious efforts this year that will almost certainly not make the November ballot but do lay the groundwork for the next cycle.

Vermont became the first state to free the weed via the legislative process (although it does not allow retail sales), but Correia sketched out how the next couple of years could see Connecticut, Delaware, Illinois, Maryland, New Jersey, New York, and Rhode Island fall in line behind it. By the time November 2020 rolls around, most of New England and the mid-Atlantic states could be legal, with Illinois and Michigan creating a major toehold in the heart of the Midwest.

When it comes to marijuana policy and ending pot prohibition, it looks to be a very interesting and fruitful next couple of years.

(This article was prepared by StoptheDrugWar.org's 501(c)(4) lobbying nonprofit, the Drug Reform Coordination Network, which also pays the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

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Advocates Claim "Overdose Prevention" Bill Would Drive People Out of Treatment and Increase Overdoses [FEATURE]

Wed, 07/11/2018 - 20:35

A bill ostensibly aimed at reducing opioid overdoses passed the House last month, but rather than cheering it on, drug treatment and recovery advocates are lining up to block it in the Senate. That's because instead of being aimed at reducing overdoses, the bill is actually a means of removing patient privacy protections from some of the most vulnerable people with opioid problems, including people using methadone-assisted therapy to control their addictions.

[image:1 align:left caption:true]And that, advocates say, is likely to increase -- not decrease -- opioid overdoses by pushing users away from drug treatment out of fear the information they reveal could be used against them. The fear is real: Unlike other medical conditions, drug addiction leaves patients open to criminal prosecution, as well as stigmatization and other negative social consequences if their status as drug treatment or maintenance patients is revealed.

This bill, H.R. 6082, the Overdose Prevention and Patient Safety Act, would remove drug treatment patients' ability to control the disclosure of information to health plans, health care providers, and other entities, leaving them with only the lesser privacy protections afforded to all patients under the Health Insurance Portability and Accountability Act (HIPAA) of 1996.

"The confidentiality law is often the only shield between an individual in recovery and the many forms of discrimination that could irreparably damage their lives and future," said Paul Samuels, President/Director of the Legal Action Center. "Unfortunately, there is a very real danger of serious negative consequences for people whose history of substance use disorder is disclosed without their explicit consent."

The Legal Action Center is spearheading the effort to block this bill with the Campaign to Protect Patients' Privacy Rights, which counts more than a hundred organizations, including the American Association for the Treatment of Opioid Dependence, AIDS United, Community Catalyst, Faces and Voices of Recovery, Facing Addiction, Harm Reduction Coalition, National Advocates for Pregnant Women, National Alliance for Medication Assisted Recovery and the, National Council on Alcoholism and Drug Dependence.

The current patient privacy protections, known as 42 C.F.R. Part 2 ("Part 2"), were established more than 40 years ago to ensure that people with a substance use disorder are not made more vulnerable to discriminatory practices and legal consequences as a result of seeking treatment. The rules prevent treatment providers from disclosing information about a patient's substance use treatment without patient consent in most circumstances. The bill's plan to replace Part 2's confidentiality requirements with HIPAA's more relaxed standards would not sufficiently protect people seeking and receiving SUD treatment and could expose patients to great harm, the advocates charge.

"They should call this the Taking Away Protections Act," said Jocelyn Woods, head of the National Alliance for Medication-Assisted Recovery. "People will be afraid to go into treatment. I'm getting emails from people who want to leave treatment before this happens. If I were going into a program and they can't tell me my information will be safe, I would think about turning around and walking out," she said.

"Many of us would not have gone to treatment or accepted services if we thought that our information would have been shared with other entities without our permission. We would not have put our careers, reputation or families at risk of stigma and discrimination if we were not assured that information about our substance use disorder was safe and would only be shared with our consent," added Patty McCarthy Metcalf, executive director of Faces and Voices of Recovery.

The push for the bill is being led by health information software companies and behavioral health providers, such as Hazelden and the Betty Ford Center, and it prioritizes convenience over patient privacy.

[image:2 align:right]"This is because the behavioral health people see complying with the privacy requirements as a pain in the ass," said Woods. "They're going to have to fix their computer systems to block out any treatment program licensed by the federal government -- not just methadone programs -- and they don't want to do that. One of the software companies, Netsmart, complained that they don't want to mess with their programming," she said.

"We need Part 2," Woods continued. "It keeps police out of the program. Without it, police can walk right in. They already sit outside methadone clinics and bust people for DUI on the way out. If this passes, they will walk right in. If the police see anyone they think has a warrant or committed a crime, they're gone."

While the bill has made its way through the House, advocates are hopeful it will stall in the Senate.

"The House pushed this through because they wanted to look like they were doing something and because the behavioral health people were pushing for it," Woods said, "but my sense is that it's moving slowly in the Senate. We have this crazy president, and there's immigration, and the congressional break, and then campaign season. My hope is we can push this past the elections and a blue wave in November will give us a fighting chance."

But the campaign isn't taking any chances and is mobilized to fight on the Hill in the next few months to block the bill. As Mark Parrino, President of the American Association for the Treatment of Opioid Dependence warned: "In the midst of the worst opioid epidemic in our nation's history, we cannot afford to have patients fearful of seeking treatment because they do not have faith that their confidentiality will be protected."

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Mexico's President-Elect Looks for Ways to End the Drug Wars [FEATURE]

Fri, 07/06/2018 - 18:28

Last Sunday, leftist politician Andres Manuel López Obrador -- often referred to with the acronymic AMLO -- won the Mexican presidency in a landslide. When he takes office in December, with his party in control of both houses of the Mexican Congress, Mexico's drug policies are likely to see some radical changes.

[image:1 align:left caption:true]Just what AMLO does will have significant consequences on both sides of the border. His policies will impact how much heroin and cocaine make it to the streets of America, as well as how many Mexicans flee north to escape prohibition-related violence, and how much drug money flows back into Mexico, corrupting politicians, police, and the military.

That AMLO -- and Mexico -- want change is no surprise. A vigorous campaign against the country's powerful and violent drug trafficking organizations -- the so-called cartels -- unleashed by rightist president Felipe Calderon in 2006 brought the Mexican military into the fight, but instead of defeating the cartels, the campaign, still ongoing under President Enrique Pena Nieto, has instead led to record levels of corruption and violence.

In 2012, when both the U.S. and Mexico had presidential elections and the drug war death toll was around 15,000, Mexico's drug prohibition-related violence was big news north of the border. But in the years since then, as US attention to Mexico's drug wars wavered, it's only gotten worse. Last year, Mexico saw more than 30,000 murders, and the cumulative drug war toll in the past dozen years is more than 200,000 dead and tens of thousands of "disappeared."

But the toll runs deeper than just a count of the casualties. The relentless drug war violence and the endemic corruption of police forces, politicians, and even sectors of the military by cartels have had a deeply corrosive effect on the citizenry and its belief in the ability of the country's political institutions to address the problem.

López Obrador, the former mayor of Mexico City, campaigned heavily on the need for change, especially around drug policy, corruption, and public safety. "Abrazos, no balazos" ("hugs, not gunfights") was one of his favorite campaign slogans. AMLO campaigned cautiously, hammering away at crime, corruption, and violence and mentioning different drug policy-related changes, but not coming out with specific policy proposals. Still, from his own remarks and those of people who will be assuming key positions in his administration, we can begin to sketch an outline of what those policies may look like.

Marijuana Legalization

Mexico is one of the world's largest marijuana producers (although the local industry has been taking a hit in recent years from completion north of the border), it has decriminalized the possession of small amounts of the herb, and it has legalized medical marijuana.

AMLO's pick for interior minister, former Supreme Court official Olga Sánchez Cordero has made no secret of her plans to seek full legalization and said this week that AMLO may seek a public referendum to gauge popular support for it. "Why maintain pot prohibition when Canada and US states are legalizing it, she said. "What are we thinking? Tell me. Killing ourselves. Really, keep on killing when... North America is decriminalizing?"

Drug Legalization

The possession of personal use amounts of all drugs has been decriminalized in Mexico since 2009, but that hasn't stopped the violence. AMLO and his advisors say he is open to considering taking the next step and legalizing all drugs.

"We'll analyze everything and explore all the avenues that will let us achieve peace. I don't rule out anything, not even legalization -- nothing," AMLO told the New Yorker during the campaign.

"The war on drugs has failed," wrote Sánchez Cordero. "Nothing contributes to peace by legislating on the basis of more criminal punishment and permanent confrontation. Violence is not fought with violence, as López Obrador rightly points out."

Drug legalization would be a radical step, indeed. It probably isn't going to happen under AMLO, since that would pit Mexico not only against the US, but also against the international anti-drug treaties that serve as the legal backbone of global drug prohibition. But he is putting the idea squarely on the table.

Amnesty

As a candidate, AMLO floated the idea of amnesty for those involved in the drug trade, a notion that created huge controversy and forced his campaign to clarify that it did not mean cutting deals with bloody-handed cartel leaders or their henchmen. Instead, his campaign clarified, he was referring to peasants growing drug crops and other low-level, nonviolent workers in the illicit business.

"Kidnappers? No," said Sánchez Cordero about possible amnesty recipients. "Who? The people working in rural areas, who are criminals because they work in the illegal drug business, but haven't committed crimes such as murder or kidnapping."

[image:2 align:right caption:true]Demilitarization and Policing Reforms

For the past 12 years, the Mexican military has been called on to fight the cartels and suppress the drug trade. But the level of violence has only increased, the military is implicated in massive human rights violations (as can only be expected when a government resorts to soldiers to do police work), and finds itself subject to the same corrupting influences that have turned state and local police forces into virtual arms of the competing cartels.

With regard to cartel violence, AMLO repeatedly said on the campaign trail that "you don't fight fire with fire" and that what was needed was not soldiers on the streets, but social and economic assistance for the country's poor and unemployed -- to give them options other than going to work for drug gangs. Just this week, AMLO announced a $5 billion package of scholarships and job training support for the young.

Still, AMLO isn't going to send the soldiers back to the barracks immediately. Instead, says one of his security advisors, his goal is to do it over the next three years. He has also proposed replacing the military presence in the drug war with a 300,000-person National Guard, composed of both military and police, a notion that has been bruited by earlier administrations as a means of effectively replacing tainted state and local police participation.

Here, AMLO is not nearly as radical as with some of his other drug policy proposals. He as much as concedes that the bloody drug wars will continue.

"I'm not overwhelmed by any of it," Eric L. Olson, an expert on Mexico and security at the Wilson Center in Washington, told the Washington Post. "It falls well within the norm for what other politicians have been saying."

The US-Mexico Relationship

Over the past couple of Mexican administrations, Mexican security agencies have cooperated closely with their U.S. counterparts in the DEA and FBI. It's not clear whether that level of cooperation will be sustained under AMLO. When he was running for president in 2012, he called for blocking US intelligence work in Mexico, but during this campaign, he insisted he wanted a strong relationship with the US on security and trade issues.

While Mexico may chafe under the continued threats and insults of President Trump, it benefits from security cooperation with the US and would like to see the US do more, especially about the flow of guns south across the border.

"We are going to ask for the cooperation of the United States" on gun trafficking, said Alfonso Durazo, one of AMLO's security advisers, repeating an ongoing refrain from Mexican politicians.

Mexico has also benefited from DEA intelligence that allowed it to kill or capture numerous cartel figures. But AMLO is a much pricklier personality than his predecessor, and between Trump's racist Mexico- and immigrant-bashing and his imposition of tariffs on Mexican exports, US-Mexico relations could be in for a bumpy few years. AMLO's moves on changing drug policies at home are also likely to sustain fire from the White House, further inflaming tensions.

"The bottom line is he's not going to fight the drug war in the way that it's been fought in the last few decades," David Shirk, a professor at the University of San Diego who is an expert on security issues in Mexico told the Post. "That is potentially a huge change."

This article was produced by Drug Reporter, a project of the Independent Media Institute.

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In Drug Case, Supreme Court Holds That Unauthorized Rental Car Drivers Have Rights, Too

Wed, 06/27/2018 - 19:40

Criminal Court & Legal Affair Investigative Journalist Clarence Walker can be reached at newswriter74@yahoo.com.

The US Supreme Court recently annulled a major search and seizure case around a rental car filled with heroin with a ruling that could impact the legal rights of Americans who may get stopped by police while driving a vehicle rented by another person. That case is U.S. v. Terence Byrd (#16-1371).

[image:1 align:right caption:true]On May 14, Supreme Court Justices released their decision in Byrd's case, announcing when the Fourth Amendment was applied to the evidence in the case that Terence Byrd had "reasonable expectation of privacy while driving a car rented by another party."

Pennsylvania state troopers had arrested Byrd with a large cache of heroin in a car rented by his girlfriend. Police told Byrd he had no right to refuse to consent to a search because Byrd's name was not on the rental agreement. Byrd copped to ten years in federal prison when a district court ruled earlier that Byrd had no expectations of privacy while driving an unauthorized rental car.

The thorny issues the justices had to untangle was whether a second party driver of a rental car like Byrd could legally refuse a police request to search the rental vehicle unless police had a warrant or probable cause, and further whether Byrd was still entitled to protection the under Fourth Amendment. In a unanimous decision, the justices rejected the government's argument that Byrd had no expectation of privacy because he wasn't listed as a second party driver.

"People who borrow rental cars from friends or family are legally entitled to the same protection against police searches as the authorized driver," wrote Justice Anthony Kennedy in the majority opinion. "There may be countless innocuous reasons why an authorized driver might get behind the wheel of a rental car and drive it."

[image:2 align:left caption:true]White House Solicitor General Noel J. Francisco had urged the justices to hold Mr. Byrd to the terms of the rental agreement. "It is common knowledge that car rentals are a personal transaction that does not make the car available for general enjoyment and that the straw man car rentals disserve society by frustrating law enforcement efforts to prevent smuggling and other crimes," he argued.

What is unusual about the Supreme Court ruling in this case is the fact the high court affirmed the defendant's conviction but the justices sent back to the lower appellate court to address important issues as it relates to whether the defendant was entitled to expectation of privacy and not be subjected to "unreasonable search and seizures."

Here are the remanded issues the appeals court, the 3rd Circuit Court of Appeals in Philadelphia, must now consider

(1) Whether an individual "who intentionally uses a third party to obtain a rental car by a fraudulent scheme for the purpose of committing a crime lacks a reasonable expectation of privacy in the rental car driven by the defendant."

(2) Whether the officers had probable cause to search the rental car, and whether these or other issues warrant further remand to the District Court or such issues should be addressed by the court in the first instance.

(3) And if police had any other probable cause to stop Byrd other than the original traffic stop.

New York criminal defense attorney Robert M. Loeb, who argued Byrd's case before the high court, told Drug War Chronicle, "Now we must revisit the same issues that the District Court and the Third Circuit have already decided in favor of the government," he explained. "If the lower court reiterates that officers had probable cause to stop and search the car and seize the drugs under their probable cause theory," Byrd stays in prison," because then the Fourth Amendment doesn't protect him," Loeb explained.

David Rudovsky, a Penn State Professor and search and seizure expert, told the Chronicle, "As the court stated, there is no bright-line rule for second drivers; my view is that long as the driver is not a thief or carjacker, there is a good claim to an expectation of privacy."

The ACLU and the National Criminal Defense Lawyer Association filed a friend brief in Byrd's case, claiming the Supreme court's ruling would likely have an outsized effect on black and Hispanic drivers. "There is a commonly held misconception that car rental is a luxury reserved for the wealthiest individuals," the ACLU filing said. To prove their facts, the ACLU noted that a 2010 tax study found "that more car rentals occur at neighborhood locations than at airport locations."

Studies have shown that black drivers are more likely than white ones to be pulled over by the police and more likely to be searched during the stop.

On appeal to the Supreme Court, Byrd's attorneys had argued: "Whether he was on the car rental agreement was actually irrelevant to whether he had a reasonable expectation of privacy under the Fourth Amendment."

Byrd's attorney had also previously argued before the Third Circuit and the Supreme Court that "millions of car rentals take place annually in the United States." They insisted that if the government won, "Police would have an incentive to pull over a rental car driver who commits a traffic violation because police would know they could search the car if the driver wasn't listed on the rental agreement."

Suspicious Traffic Stop

Terence Byrd's journey to the nation's Supreme Court began on September 17, 2014, at a Budget car rental in Wayne, New Jersey. While Byrd waited outside, Latasha Reed, his girlfriend with whom he sired five children, went into Budget and signed an agreement to rent a new Ford Fusion. Reed's car rental agreement explicitly stated that additional drivers would only be allowed with "prior written consent." Reed did not add Byrd or any other drivers onto the rental agreement.

[image:3 align:right caption:true]Once a Budget employee finalized the paperwork, Reed gave the keys to Byrd, who began his trek toward Pittsburg, Pennsylvania. While driving near Harrisburg, Pennsylvania, Byrd came upon State Trooper David Long who later claimed he stopped Byrd for either driving too long in an illegal left lane or while Byrd gripped the steering wheel at the "10 and 2" position, which is known as a "hand play" that many drivers use while holding a vehicle's steering wheel in an unsafe manner, notwithstanding an additional fact that Byrd's driver's seat was too far back reclined!

After running Byrd's driver's license the trooper discovered Byrd had given an alias name of James Carter, and also under Byrd's real name, he had a New Jersey arrest warrant. Ignoring Byrd's right to refuse to consent to a search--officers later claimed Byrd consented to the search--the officers searched the vehicle's trunk and hit the jackpot: 49 bricks of heroin and a police vest. Officers arrested Byrd and subsequently charged him with possession/intent to sell heroin and possession of body armor by a felon.

At a suppression hearing on June 16, 2015, held before Judge Caldwell, State Trooper David Long reiterated the suspicious events that led him to pull Byrd over, which included the officer saying he was unable to see Byrd due to the reclined seat, the "10 and 2" driving position, and the traffic violation.

Byrd's attorney was incredulous: "So the only reason you pulled out to stop my client was the fact he was at "10 and 2" -- and you couldn't see him in the car because his driver's seat reclined too far back?" the lawyer asked. Trooper Long nodded affirmatively.

Byrd's lawyer also drilled the officer about the notion that Byrd's race may have played a role for the officer to stop him. Then, surprisingly, Trooper Long mentioned a third factor that triggered the stop. "In a rental vehicle, he said. "That's what drew my attention to it, yes."

This is when the vehicle rental contract collided with the Fourth Amendment, which forbids unreasonable search and seizure. Trooper Long said he explained to Byrd that he was free to search the car without Byrd's consent because Byrd's name wasn't on the car rental agreement.

After a federal judge refused to throw out the evidence, Byrd accepted a plea bargain for a 10-year prison sentence in exchange for the right to appeal the conviction based on the argument the search violated Fourth Amendment protections against unreasonable search and seizure.

Whether Byrd prevails at the lower court during a hearing scheduled either later in June or July remains to be seen. Meanwhile, Byrd and his attorneys await the outcome with bated breath. Hopefully, the Fourth Amendment wins again. Stay tuned -- we will keep you informed of the outcome.

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