Here’s a quick update video I did for Youtube on the Dustin Elswick case – the case where the drug task force was caught on video searching his house by hidden cameras.
Here’s a quick update video I did for Youtube on the Dustin Elswick case – the case where the drug task force was caught on video searching his house by hidden cameras.
NOTE: A landlord cannot give you permission to search his tenant’s home for illegal stuff. Write that on the chalkboard, and repeat 100 times . . . .
In the 1961 U.S. Supreme Court case of Chapman v. United States, the Court was presented with the following scenario:
In 1958, acting without a search warrant, but with the consent of the suspect’s landlord, police officers entered the suspect’s home through an unlocked window, and searched the rental house. There they found an “unregistered distillery” and 1,300 gallons of “mash.” Shortly afterwards, the suspect was indicted for violation of federal liquor laws.
A guy named Bridgaman owned a rental house in a wooded area, near Macon, Georgia. Since the house had been rented to a new tenant, on Sunday, February 16, 1958, Mr. Bridgaman went to the rental house, for the purpose of inviting his new tenants to attend church with him. Upon arrival, he noted a strong “odor of mash” around the house. There was no response to his knock. He tried to look in the windows, but couldn’t see anything.
Being a good Christian, Mr. Bridgaman contacted two local police officers, who dutifully reported to his home. Together, the three went to Mr. Bridgaman’s rental house, where all three of them agreed that there was a strong “odor of mash.” They knocked on the door; but no response. They tried to look into the windows; but they couldn’t see anything. They checked to see if the windows were locked. They were all locked, except for one – the bathroom window.
According to the officers’ sworn testimony, the landlord, Mr. Bridgaman, gave them permission to climb in the window and see if the tenants were doing what he suspected they were doing, given the strong smell of moonshine in the making. So the officers climbed in the bathroom window.
After entering the home, one of the officers found 1,300 gallons of mash in the living room, and other than the mash, the rest of the house was empty – aside from the distillery and distilling accessories.
The officer who found the moonshine operation, yelled out to the other about what he had found, and told him “to go get some help.” The other officer then left, taking the landlord home, and called the federal police to come to the scene.
However, before the feds could get there, the tenant arrived home. He unlocked the door, walked inside, and was suddenly confronted by the police officer, still inside the house, who handcuffed him and arrested him.
When the other officers arrived at the scene, they saved samples of the mash, took pictures of the crime scene, inside the house, and then destroyed the moonshine still and destroyed the shine. There had never been a search warrant of any kind. The case went all the way to the U.S. Supreme Court.
Surprisingly, despite not having a search warrant, the government’s argument justifying their warrantless search, was that it was a rental property, and that the landlord, on a social call, noticed that the premises was being used for criminal purposes, and since he had the legal right to enter the premises as the landlord, “he should be able to exercise that right through law enforcement officers to whom he has delegated his authority.”
The SCOTUS immediately pointed out three problems with that argument: 1) the officer forced open a window to gain entry to the premises; 2) their purpose in entering was to search for distilling equipment, not to evaluate the status of the landlord’s property; and 3) if the SCOTUS were to allow such an intrusion, without a warrant, “would reduce the Fourth Amendment to a nullity and leave tenants’ homes secure only in the discretion of landlords.”
Gee . . . . Sounds familiar.
Therefore, the Supreme Court of the United States found that the search was illegal, and thus began an extended progeny of federal cases, all based on the 1961 U.S. Supreme Court decision in Chapman v. U.S., written by Justice Charles E.Whittaker, who was appointed by President Eisenhower in 1957.
Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).
And here we are, in 2019-2020, and there are still LEOs in West Virginia, who apparently believed they were entitled to entitled to go search a house for drugs, just by virtue of supposedly asking a landlord if they can enter? Yes, 1961 was a long time ago, but the case has been cited in caselaw 670 times, by my count, since then, including as recently as 2015, here in the Fourth Circuit.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
“At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (internal quotation marks and citations omitted).
And the protection of a house extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel room); Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (rented house). U.S. v. Stevenson, 396 F.3d 538 (4th Cir. 2005).
It’s been in the news the past few days, that the West Virginia Legislature is considering a bill which would legalize marijuana in the state. Introduced by the Democrats, it’s been the subject of knee-jerk criticism by many who claim to have conservative principles. This is yet another illustration of how many so-called conservative politicians misunderstand the conservative principle of “less government,” and even more importantly, the obscure concept of “liberty.”
Now, I have no desire to smoke anything but cigars, but stop and think for a moment . . . . Speaking of liberty, I wonder how Patrick Henry, George Washington, Benjamin Franklin, or Alexander Hamilton, would have felt about the prospect of a legislature enacting laws criminalizing the possession of a particular plant? What about the criminalization of any object, just in general?
The Constitution, which all elected politicians took an oath to defend, and which all lawyers and judges took an oath to defend, was ratified in 1788. As of 1790, we had exactly thirty (30) federal crimes on the books. See Crimes Act of 1790. The crimes at that time were treason, misprision (concealing) of treason, piracy, counterfeiting (manufacturing), interference with diplomatic immunity, passport obstruction or assault on an ambassador, murder, manslaughter, mayhem (unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person….), larceny, misprision (concealment) of felony, obstruction of dissection, corruption of judicial records, perjury and subornation, judicial bribery, obstruction of judicial process, and prison break.
In 18th century, and early 19th century western civilization, criminalization of the possession of objects, drugs, alcohol, etc., was not a thing at all. On the other hand, the outlawing of drug and alcohol possession had long been a central component of Sharia Law, and Muslim dictatorships, as well as in regimes in the Far East:
The prohibition on alcohol under Islamic Sharia law, which is usually attributed to passages in the Qur’an, dates back to the 7th century. Although Islamic law is often interpreted as prohibiting all intoxicants (not only alcohol), the ancient practice of hashish smoking has continued throughout the history of Islam, against varying degrees of resistance. A major campaign against hashish-eating Sufis was conducted in Egypt in the 11th and 12th centuries resulting among other things in the burning of fields of cannabis . . . .
A number of Asian rulers had similarly enacted early prohibitions, many of which were later forcefully overturned by Western colonial powers during the 18th and 19th centuries. In 1360, for example, King Ramathibodi I, of Ayutthaya Kingdom (now Thailand), prohibited opium consumption and trade. The prohibition lasted nearly 500 years until 1851, when King Rama IV allowed Chinese migrants to consume opium. While the Konbaung Dynasty prohibited all intoxicants and stimulants during the reign of King Bodawpaya (1781–1819). As the British colonized parts of Burma from 1852 they overturned local prohibitions and established opium monopolies selling Indian produced opium.
In late Qing Imperial China, opium imported by the British East India Company was consumed by all social classes in Southern China. Between 1821 and 1837, imports of the drug increased fivefold. The drain of silver to India and widespread social problems that resulted from this consumption prompted the Chinese government to attempt to end the trade. This effort was initially successful, with the destruction of all British opium stock in June 1839 (see Destruction of opium at Humen). However, to protect their commerce, the British declared war on China in the First Opium War. China was defeated and the war ended with the Treaty of Nanking, which protected foreign opium traders from Chinese law.
The first modern drug law in the western world was in England in 1868. The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.”
Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.
As for state politicians keeping themselves busy attempting to keep their constituents safe, Arizona has over 4,000 statutory state-level crimes on its books (that’s in addition to the 5,000 federal crimes); North Carolina, where I went to law school, has added five sections to its criminal code each year since Wortd War II, and its legislature has added 318 new crimes since 2009 alone.” Anyone can be a criminal when there’s 5,000+ crimes to choose from:
The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.
Our country was born out of the English common law, and where there is a void, our courts still look to the English common law for clarification on may topics of criminal law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public. There was no real police force anywhere. Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded:
England in the 18th century had no public officials corresponding to either police or district attorneys. Constables were unpaid and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. Attempts to create public prosecutors failed in 1855 and again in 1871; when the office of Director of Public Prosecution was finally established in 1879, its responsibilities were very much less than those of an American district attorney, now or then. In 18th century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyranical and, worse still, French.
Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.
In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.
See Making Sense of English Law Enforcement in the 18th Century, Santa Clara University School of Law, 2 U. Chi. L. Sch. Roundtable 475 (1995).
Somewhere we left our English common law heritage, and the heritage of western civilization itself, to embrace becoming a police state society, seeking to control every aspect of human life. Anglo-American criminal law did not seek to control, or somehow enhance society, but rather to punish violators, reimburse victims, and to prevent future misconduct.
It was the authoritarian regimes of the Middle East and the Far East, which for centuries kept their subjects under their control, and which is a criminal justice model based on what they see as enhancing the community, in the form they see as most proper. As Professor Dubber wrote, the inevitable result of this sort of a police vs. citizen dichotomy is a divided nation:
In the communitarian approach to the question of police control, the battle lines are clearly drawn. On the one hand is the community of potential victims, the insiders. On the other hand is the community of potential offenders, the outsiders. The boundaries of these communities are not fluid. One either belongs to one community or the other. And it is the duty of the community of potential victims to identify those aliens who have infiltrated its borders, so that they may be expelled and controlled, and their essential threat thereby neutralized.
Policing Possession: The War on Crime and the End of Criminal Law, Markus Dirk Dubber, Journal of Criminal Law and Criminology, Vol. 91, Issue 4 (2001).
And here we are then, a divided country, full of people who would probably get along just fine as individuals, but who have been turned into competing interest groups in the politics of the criminal justice system.
Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms. The legacy of doing so, still reverberates today, constantly. This is where the so-called Constitution-loving conservatives suddenly realize, what a minute, you mean they can do that to me too? But, but, but, I’m a law abiding citizen . . . .
The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.
Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.
They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.
Id. at page 92. The point is, you can’t claim to value the Constitution, and the original intent of the Framers, just because you support the Second Amendment, while at the same time supporting the world’s largest collection of criminal laws, criminalizing everything from the plants you like, to the thoughts in your mind. Imagine telling George Washington that a modern day Virginian can’t even distill, or possess, his own whiskey, for his own personal use, without permission from the government . . . . That’s where we’ve ended up, thanks to generation of do-gooders.
And it can always get worse, if the politicians are allowed to continue creating new criminal law violations in order to shape society how they think it ought to look. You might think the unsuccessful “War on Drugs,” in the U.S. has been bad. But take a look at Singapore. 70% of their executions are for drug related offenses, including possession. Singapore’s “Misuse of Drugs Act” creates a presumption of trafficking based on amounts possessed by defendants. This law allows police to search people’s homes and their persons without a search warrant, and based only on a police officer having suspicion. It also allows police to forcibly perform drug screens of anyone they suspect of drug use. Each listed drug has its own “mandatory death penalty” threshold. In other words, if you possess 30 grams of cocaine, the penalty is mandatory execution. If you possess 500 grams of marijuana, the death penalty is also mandatory. As little as 15 grams of marijuana is presumed trafficking and may lead to life in prison. Even with these Draconian anti-drug laws, drug abuse in Singapore still exists, and is still increasing. See also Singapore’s drug problem compounded by online availability, Channel News Asia, National Edition, Dec. 13, 2019.
Make no mistake, at the current trajectory, this is where we’re headed. The Washington Post ran an opinion piece in March of 2018, praising Singapore, claiming that they were winning the “War on Drugs.” It reads like the Singaporean version of “Baghdad Bob” authored it. Yet, as recently as a month ago, Asian news outlets reported that drug use is increasing there. Beware the do-gooders, and remember, just because a politician is elected, doesn’t mean he has to do anything. Hell, do nothing. That’d be great. Or better yet, start taking some damned laws off the books.
Here’s an interesting, and academic (for Constitution nerds), update on the Sizemore federal civil rights lawsuit, which had been in the news recently.
This is the one where the drug “task force” had found heroin in the client’s home, but the case was dismissed after a federal judge found that the officers had made numerous false statements to the magistrate in order to get the search warrant. This is also actually the case I last posted about, since I haven’t been posting much on here lately.
Should the fact that officers were found to have made false statements under oath to get a fraudulent warrant, have been allowed to go away quietly since drugs were actually found, or should something have been done about it? The news media wasn’t happy about it, necessarily, but I elected to do something – heroin or no heroin. And here’s why:
Either “equal justice under the law,” etched into the walls of the Supreme Court, is just decoration, or it actually is enforced and put into practice.
Here is the response brief we just filed to some of the defendants’ motion to dismiss. I really enjoyed writing this one, because it was as if I were back in my old baseball days, and being a kid who was bigger than most, the pitcher gave me an underhand slow pitch, just begging me to hit it out of the park. Maybe I’m missing something, but I don’t think so. I really look forward to reading the outcome of this one. I don’t think it’s going to turn out like they had hoped . . . .
Here is the copy of a civil rights lawsuit we filed in the U.S. District Court for the Southern District of West Virginia late last week. It has now been assigned to Judge Goodwin in Charleston, WV. The case comes out of Fayette County, West Virginia, and involves a criminal investigation and prosecution gone awry.
My client, Keith Sizemore, had his home searched, via a SWAT team style raid, while he and his 16 year old son were home. In the subsequent federal prosecution, the federal judge presiding over the case ended up suppressing evidence obtained during the search, and issuing an order finding that members of the Drug Task Force had lied to the Magistrate Court of Fayette County in order to obtain the search warrant for Mr. Sizemore’s residence. It’s really an astonishing order:
The order shines the light on what has become a common scenario: a drug raid with some sort of seizure of illegal drugs, and then there is a civil forfeiture proceeding in WV State Court, in which the owner of the items has all the items confiscated under color of law. In this case, our lawsuit alleges that the state civil forfeiture machine had already seized and became the new owner of Mr. Sizemore’s home and 2017 pickup truck, before the criminal indictment was even served on him. However, interestingly, the criminal prosecution exploded with the suppression order finding that the task force members lied to obtain the warrant.
I wonder what will happen? We shall see…..
Update: Facebook video I made: https://www.facebook.com/JohnBryanLaw/videos/244860226411030/
So last night I attended a great seminar on the developing legal changes in West Virginia. Here are some of my notes, regarding my take-aways… This is a completely new area of the law, and economy, in West Virginia. Here were my basic takeaways. Excuse the short-hand notes:
Things learned from the hemp seminar last night:
1. There will be a boom of investment into West Virginia, including a land rush, for hemp and medical marijuana, similar to the marcellus shale. Foreign investors and land agents are going to be looking for lease contracts. Private property owners and farmers are going to want to cash in as well. A legal quagmire is imminent, due to the next thing:
2. The difference between hemp and marijuana is a chemical difference only. You cannot tell the difference, nor can law enforcement, between hemp and M. by looking at it. A chemical analysis has to be performed. Hemp is, by law, .3% or less THC of a certain strain of marijuana plant, and therefore not illegal.
3. State and federal law, and authorities are not on the same page. The WV DOA is fully on-board and is looking to assist landowners and businesses in developing this new economy, while the feds are still looking for pot needles…… There are differences in state and federal law which can land you in big trouble very easily…..
4. Industrial hemp growing, and production, is going to be much easier than dealing with medical marijuana. Pretty much anyone is going to be able to get into hemp, so long as all owners, and land owners, pass background checks. While MM is going to be limited to 10 growers, and 10 processors….. Insert WV good ole’ boy politics.
5. Both hemp and MM are going to be cash-intensive businesses. While hemp is reasonable as far as permit fees go, there currently is no access to banking institutions, nor insurance for those activities. MM has the same problems, with the added bonus of enormous filing fees and capital requirements. To get into that business, it looks like millions in liquid capital is going to be necessary. With the added bonus of no banking, no insurance, and high legal risk. The cherry on top is that apparently the IRS is auditing pretty much 100% of these businesses….
6. LEOs are going to be very slow in understanding the legalities and the differences. You must get legal advice prior to getting involved. Transporting can be big trouble. Likely better to fully notified any applicable agencies ahead of time. Be proactive.
7. This is going to be a regulation nightmare, but it will be necessary. Permitting is going to be key. Permits will be denied based on nondisclosure, lies, or omissions. Better to be fully compliant than sorry.
Get ready and buckle up because this industry is coming; and it could be an economic boom for West Virginia. There’s a lot of money to be made, and let’s try to keep it in WV rather than the out of state investors. But as they say, you’re going to need a lot of
Lawyers, guns, and money…….
Thanks to Jennifer Mason, Esq., of Dinsmore & Shols law firm for the presentation last night. The thoughts here are my own and not hers BTW…..
This was the headline, and accompanying photograph, seen after our recent hearing in the Mineral County, WV felony prosecution of John and Tonya Cozatt. They are being prosecuted for several felonies for selling potpourri in their nutrition stores which allegedly contained “synthetic marijuana”. The newspaper just couldn’t resist labeling the products as “Bath Salts”, which of course have been all over the national news due to incidents such as the face-eating incident in Florida.
The actual article makes it clear that the case has nothing to do with “bath salts”. But if you look at the link I provided above under the photograph, you can see how they mentioned “Bath Salts” or “Salts” in three different areas surrounding the article. It’s like the media labeling every gun, regardless of what it actually is, an “AK-47” or an “assault rifle.” In the end, it poisons the jury pool. In all of these pre-trial articles, people are seeing “bath salts, bath salts, bath salts.” And in the national media they are seeing endless stories on people on bath salts doing crazy things. Is it really necessary to sensationalize something that is innocuous as a nutrition store selling potpourri? As the article notes, law enforcement had no idea the potpourri may have contained illegal compounds prior to having it analyzed by a laboratory:
Attorney John H. Bryan, representing the Cozatts, questioned Paterline about the packaging of the substance, noting that none of the packages said it was synthetic marijuana or meant to be smoked.
Bryan also asked Paterline if he could tell when he purchased the substances if they were illegal or not, and he said he could not.