Portland Criminal Defense Law Blog

As our Portland readers know, medical marijuana is legal in Oregon, and it is permissible to possess, use, cultivate and deliver medical marijuana, provided certain requirements are met.

Interestingly, medical marijuana growers in Oregon are now able to purchase insurance for their business investments, pointing to a growing acceptance of the medical marijuana industry. Depending on the policy, such insurance covers not only the building out of which the operation is conducted, but also the crop itself, from losses caused by bugs, theft, and fire, as well as raids by state and local police.

Oregon medical marijuana has been in the news alot lately. With the growing expansion of dispensary-like "cannabis cafes," cannabis-related eateries, and medical marijuana's prominence as a hot-button issue in the democratic campaign for state attorney general, pubilc acceptance of the growing presence of medical marijuana in the community appears to be at an all time high.

Recent legal news on the federal front however should temper any belief that the days of criminalization are nearing an end. As noted in the Oregonian, federal authorities recently arrested six people in Southwestern Oregon for allegedly growing far more marijuana than was authorized under Oregon's Medical Marijuana Act and conspiring to sell the excess out-of-state on the black market.

Under Oregon's law, medical marijuana users can grow their own medicine or choose to have an authorized caregiveer grow it for them. Both patients and caregivers are subject to strict limits on the number of plants in their gardens and the amount of usable marijuana they may possess. It is unlawful to sell medical marijuana, even to patients, in Oregon, although caregivers are allowed to recover some of their production costs.

While the U.S. Attorney for Oregon maintains she is sending a message to those who are using the medical marijuana program as a screen for their unalwful activities, it remains true that any growing, production, distribution or even possession of marijuana remains a federal crime. Thus, even medical marijuana patients and growers who are in full compliance with the Oregon Act are in violation of federal law and may find themselves swept up in a federal prosecution.

Federal law with regard to marijuana can be draconian. In the case of marijuana acultivation there are 5 and 10 year mandatory minimum sentences triggered by only 100 and 1000 plants respectively. Additionally, while legitimate medical marijuana growers will likely have no prior criminal history and otherwise be eligible for relief from the the mandatory minimums under federal "safety valve" provisions, this may not always be the case.

For example, under federal law it is a seperate criminal offense to possess a firearm in connection with another federal offense. The otherwise lawful possession of a firearm can also be used to deny a first time offender "safety valve" relief from a marijuana cultivation mandatory minimum.

Many otherwise law-abiding persons in Oregon possess firearms, both for self defens and recreational purposes. The news is also filled with stories lately of medical marijuana growers being robbed for their medicine. It doesn't stretch the imagination to see that some Oregon medical marijuan growers may keep firearms openly and notoriously to discourage would be thieves.

Additionally federal civil and criminal property forfeiture laws can be applied aggressively against persons being investigated and charged in federal court. Personal property, real estate, bank accounts, business property and cash can all be seized in advance of trial.

The point is that, particularly where firearms are concerned, one's legitimate involvement in Oegon's medical marijuana program can have dramatic and unintended consequences in federal court. Anyone engaged in the program should do themselves a favor and seek out a comprehensive legal evaluation of their potential legal risks and liabilities from a qualified oregon federal defense attorney.

Our Portland readers may have heard about the sexual misconduct scandals at the Coffee Creek Correctional Facility, a women's prison. The scandal involves the sexual abuse of prisoners by corrections workers. So far, state authorities have paid out $1.2 million to current and former inmates to settle lawsuits alleging sexual abuse.

The incidents of sexual abuse reportedly go back to 2002, the year after the prison opened. Although the settlements involve incidents by four corrections workers, several of which occurred before 2008, authorities are alleging that the sexual abuse has continued. Another two men were arrested this year, and a third is apparently being investigated.

On January 23, 2012 the U.S. Supreme Court in United States v. Jones, discussed here, held that the government's installation of a GPS device on a suspect's car, and the use of that device to monitor the car's movements constitutes a "search" under the 4th Amendment to the U.S. Constitution. Thus placement of a GPS device on a suspect's car would under normal circumstances require a judicially approved search warrant.

Thanks in part to another Supreme Court case, this one from 2011, Johnny Law appears to have little to worry anout concerning all those GPS devices placed without a warrant in the years prior to the Jones decision. In Davis v. United States, the Supreme Court held that evidence which was obtained during an unconstitutional search need not be suppressed if that search was conducted in reasonable reliance on binding judicial precedent.

In the 9th Circuit, the warrantless placement of electronic tracking devices on citizen's vehicles was approved as constitutional by the 9th Circuit Court of Appeals. Of course, all of these cases were overruled after the decision in Jones where the U.S. Supreme Court held to the contrary.

Cases involving warrantless placement of GPS devices which were before the courts as the Jones case was decided are now being decided and it appears that the district courts in the 9th Circuit are uniformly appying the rule of Davis, to refuse to suppress evidence seized as a result of an admittedly unconstitutional GPS device placement and monitoring.

Disheartingly, what happens in the 9th Circuit may not happen in others. In other circuits where the caselaw was not so clear on GPS devices, the result may be different. If the Circuit you are in had not decided the issue conclusively then the Davis rule does not apply and suppression of the evidence may be had.

It appears that whether or not a person has a remedy for a GPS device-related constitutional violation may boil down to the happenstance of where they live. If you happen to live in the 9th circuit, you may be out of luck. Challenges to the use of GPS and other technological enhancements in search and seizure is a rapidly evolving area of both state and federal search and seizure law. Consultation with an experienced criminal defense attorney is a must.