cannabisnews.com: Ninth Circuit Grows Cool on Pot Cases!





Ninth Circuit Grows Cool on Pot Cases!
Posted by FoM on August 17, 1999 at 21:25:50 PT
By Bill Kisliuk 
Source: Cal Law
A cold wind is blowing for pot growers who do their gardening within the expansive jurisdiction of the Ninth Circuit U.S. Court of Appeals. 
In recent weeks, the court has taken two actions in marijuana cases that may scale back the rights of criminal defendants. One of them offered such a narrow view of Fourth Amendment search-and-seizure protections that even Judge Andrew Kleinfeld -- an unshakably conservative jurist -- objected. In a second move, the court vacated a defense decision in a 1998 case covering the same general topic. The case that put Kleinfeld on the wrong side of a 2-1 decision, U.S. v. McIver, 99 C.D.O.S. 6304, originated in the forests of Montana. Defendants Christopher McIver and Brian Eberle were suspected of cultivating a pot garden on U.S. Forest Service property in the Kootenai National Forest. Without getting warrants, officers utilized high-tech devices to track events. Unmanned motion-activated video and still cameras were placed on a tree near the pot garden. At 3:30 one morning, agents placed magnetic tracking devices on the underside of McIver's truck, which was parked in his driveway. After tracing the duo when they returned home one night with the harvest, the agents found pot, firearms and a basement pot garden. McIver and Eberle were later indicted on a variety of pot charges. On appeal, they challenged the evidence gathered from the warrantless searches. The court easily rejected arguments asserting a privacy right for activities that took place in the middle of a national forest. Judge Arthur Alarcon, joined by Judge Pamela Rymer, also spurned the contention that putting tracking devices on the truck was improper. Alarcon noted that the truck was not parked within a fenced area or "curtilage," and so was not protected. He also said McIver failed to demonstrate that "he intended to preserve the undercarriage of the Toyota 4Runner as private." Since he couldn't show that the device "deprived him of dominion and control" of the car and didn't interfere with its operation, "no seizure occurred because the officers did not meaningfully interfere with McIver's possessory interest." Kleinfeld, who otherwise concurred, wouldn't get into the truck. For one thing, he pointed out the hazards of putting electrical devices on vehicles unbeknownst to owners. He also tried to capture the Supreme Court's attention by saying he could not find much "definitive law" on the question at hand. He also noted that other circuits "are in some disarray," and that three members of the high court indicated some interest in warrantless installation of a beeper back in 1981. Kleinfeld concluded, "In the absence of a warrant issued by a neutral magistrate, or applicability of an exception to the Fourth Amendment warrant requirement, people are entitled to keep police officers' hands and tools off their vehicles." In a separate action, the circuit did away with a 1998 ruling that barred evidence gathered without warrant by a thermal imager. One such device was used to measure excess heat coming from the Oregon home of Danny Lee Kyllo. Along with other evidence, the imaging results prompted a search that revealed a dope-growing operation. Last year, a 2-1 panel noted the potential of such devices -- the best of which can reveal an outline of a person waving a hand behind a darkened glass or, as visiting Eastern District of Virginia Judge Robert Merhige Jr. described it in U.S. v. Kyllo, 140 F.3d 1249, "two commingled objects emitting heat in a bedroom at night." Joined by Judge John Noonan Jr., Merhige determined that warrantless use of a thermal imager "infringes on an expectation of privacy that society clearly deems reasonable." Judge Michael Daly Hawkins dissented, noting that other circuits had found use of imagers proper: "Whatever its Star Wars capabilities, the thermal imaging device employed here intruded into nothing," only measuring the heat leaving Kyllo's home. On July 29 the panel withdrew the opinion. What's changed? Well, for one thing, Merhige has left the bench to join Hunton & Williams in Richmond, Va. Conservative circuit Judge Melvin Brunetti replaced him on the panel.http://www.callaw.com/stories/edt0817e.htmlİ NLP IP Company, Tuesday, August 17, 1999 
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