Drugs, guns, and rock'n'roll
Drugs and guns. There are a lot of people - and I'm including lawyers, prosecutors, and judges, the people responsible for hashing out these things - who believe that if the police have a right to stop you, they have a right to frisk you. Not so. The cop has the right to stop you if he has a reasonable suspicion that you're engaged in criminal activity. To justify a frisk, though, he has to show that he had a reasonable suspicion that you were armed and dangerous.
That distinction is all but eliminated in drug cases.
It is well recognized that the need for a protective pat-down becomes more urgent where drugs are involved. The very nexus between drugs and guns can create a reasonable suspicion of danger to the officer.
The 8th District said that last week in State v. Blevins. You can find countless quotes to the same effect in opinions from courts of just about every level, state and Federal.
Apparently, the guy who first came up with the observation watched one too many episodes of The Wire. Because that's not the way it is in real life.
I know this because I had a case a while back involving drugs, and I asked the cop how many drug arrests he'd made. "About 200," he said, a not unreasonable number for a cop who'd been on the beat for eight years.
"In how many of those cases were guns involved?"
He shifted uncomfortably. "Five or six."
Now, lest you think that my ego has staged a coup d'etat and I've convinced myself that Ultimate Truth can be seen only through the glasses of my own experience, let me explain. No, I don't expect you to put in your brief as refutation of the drug/guns link, "Bensing said he cross-examined a cop once and got a completely different answer." What you could in your brief is this: "According to the United States Department of Justice, fewer than one-quarter of all Federal drug since 1998 involved a weapon." You can access the report here.
Just guns. This is for those who handle Federal criminal cases. If you don't, you can spend a few minutes looking at pictures of nekkid wimmin, then get back to the rest of us.
So here's the deal. The Armed Career Criminal Act gives you an additional fifteen years on any Federal sentence if you're carrying a weapon during the crime, and have had three prior convictions of a crime of violence. The statute named numerous crimes as qualifying as crimes of violence, and then included a catch-all phrase - the "residual clause" - which included in that category offenses which "involve conduct that presents a serious potential risk of physical injury to another." Last year, in Johnson v. United States, the Supreme Court held that the residual clause was too vague to withstand constitutional challenge.
Under the sentencing guidelines in Federal court, a defendant is a career offender if he's convicted of a crime of violence or a drug offense, and has at least two prior crimes of violence. Very bad things happen to you if you're a career offender in Federal court; you're usually looking at around eighteen years for a minimum, and you can get life without a whole lot of trouble.
The sentencing guidelines contain the same definition of "crime of violence" as the ACCA statute does.
Including the residual clause.
But if they're identical, doesn't the guidelines clause get struck down, too?
No, argued the government: while the statute's sentence is mandatory, the Guidelines are now advisory. We'd discuss the argument more, but there's no need to: the important thing is that the 6th Circuit ruled last week in US v. Pawlak that the Guideline clause is invalid, too. Keep in mind that the definition also applies to a number of other offenses in the Guidelines. From here on out, make sure to check out what are claimed to be "violent offenses" in your cases. There may be some good news on that front.
Just drugs. Last November, Ohio voted down a marijuana legalization initiative by nearly 2-1. By the end of this month, though, a bill should be on Governor Kasich's desk to legalize medical marijuana.
Will that ultimately result in legalizing recreational use? That's the path Alaska, Colorado, Oregon, and Washington state have taken. Medical marijuana isn't a gateway to full legalization, though; twenty states allow medical use. Then again, the difference between allowing medical marijuana and fully legalizing it is a little blurry. Let's put it this way: you don't have to be on death's door for a physician to write you a prescription saying "this bud's for you"; a complaint of frequent headaches will do nicely.
This isn't to suggest that everybody's hopped on board the marijuana train: law enforcement the political establishment, and doctors opposed the issue last year, arguing that easier access to pot would lead to more crime, more teen drug use, and more stoned drivers.
The evidence of that is mixed. There has been an increase in crime in Seattle and Denver since marijuana was legalized in Washington and Colorado, but it's not clear whether that's a coincidence, or a reflection of a nationwide increase in crime. Similarly, while initial studies Indicated there was little evidence of increased teen use, a study last year showed that 9.7% of high school students in states where medical marijuana use was legal had used pot, compared to 6.8% in states where it wasn't.
As for driving, there's been an uptick in the number of accidents where drivers had measurable THC levels. That's not definitive, either; alcohol was present in most of those drivers, and there's evidence to suggest that marijuana use heightens the risk of driving while drunk: people who are stoned don't realize they're as drunk as they are. But tests done on driving simulators have shown that stoned drivers are a lot safer than drunk ones. While marijuana use affects a driver's reaction time, a stoned driver is no more likely to get into an accident than a sober one.
For now, at least, the evidence suggests the truth of the observation that the biggest danger of marijuana is that you can get arrested for it.