Author: hburkelegalgmail-com

The Legislative Counsel Initiative Process: The Kick Off

In an effort to make the process of the California cannabis legalization/regulation voter initiative that Omar Figueroa and myself are in the process of crafting for the 2016 election more accessible to the public, and to craft a cannabis legalization or regulation initiative for 2016 that is collaborative, I decided to start this blog for to allow the cannabis friendly community in our great State of California a chance to see inside the process and hopefully be a part of the making of history.  To be clear, when I say collaborative, I mean an initiative that seeks to protect the seriously ill, the mom and pops growers, the large scale cultivators, distributors, and even social cannabis users.  We’re kidding ourselves if we think our state legislature is going to protect those rights, although I appreciate Tom Ammiano’s efforts.  Heck, I appreciate everyone’s efforts.  But plainly Ammiano’s bill isn’t right for our state.  So what next?  Do we, as so many have sadly done, bury our head in the sand and do nothing?  Or do we rise to the occasion to claim those rights we have been fighting for lo’ these many years?  The answer is clear to me and I hope to you as well.

So, to start the process, my colleague Omar Figueroa and I drafted a letter to our state Legislative Counsel asking them to help us draft an initiative according to certain overarching principles that Omar and I and a few of our colleagues identified (and that I’ll discuss in greater detail in a subsequent post). To read the letter and our request, please check out the attached PDF copy of the letter.  Why did we ask the Legislative Counsel to help us write it? Well, in what I presume to be an effort to make government more accessible to the common person, our state law says our Legislative Counsel must draft an initiative for anyone who asks them to, provided the request is (1) supported by 25 elector signatures and (2) there is a reasonable probability that the initiative will be submitted to the voters. See Cal. Government Code § 10243.  The process is called the Legislative Counsel Voter Initiative Process.  A mouthful, huh?  The really cool thing about this process is that this is the same way the Compassionate Use Act was drafted back in the day (it was enacted in 1996, so I’m guessing it was submitted to the Legislative Counsel likely the year or 2 before that).  That means we’re treading on historical ground here, using the same process Peron and the other CUA originators used, which to me makes the process more special.

We easily got the necessary 25 signatures, most from our fellow activists at the Emerald Cup in Santa Rosa, CA on December 14, 2013 (a GREAT event, btw), others mailed in their signatures, and then I got many more at an ASA meeting here in Nevada County (where the ASA group is vibrant!). And viola!  Omar and I submitted the letter and signatures to the Legislative Counsel in the Capitol Building in Sacramento last week and the process began.  The best part of filing it was taking my son into the rooms for the state Assembly and Senate, to see where our state’s legislative action happens.  It was exciting.  I’m surprised how many people don’t know how the federal legislature works, much less so the state, and I often send out the Schoolhouse Rocks videos to anyone who will watch. Those videos are gems of knowledge. No joke.  I digress…

Quickly after we filed the letter, Omar got a call from the Legislative Counsel attorney who was assigned to our initiative request.  The attorney expressed excitement about writing the initiative, which is so cool!  He indicated that he was slammed with work because of the state Legislature’s deadlines for this 2014 session & so he was grateful that we are looking towards the 2016 election, so he can start work on it in a few weeks. We know more about his response to our requests sometime in March, I imagine, but for now we can be sure that we met their basic requirements under the Government Code and that this is happening!  For now, read the attached letter and keep a lookout for more on this soon.

Legislative Counsel letter here:

Legislative Counsel Letter.1.27.14.NO signatures

In closing, my musical meditation for this post is from the great Mos Def, who says: 

“We are alive in amazing times
delicate hearts, diabolical minds

revelations, hatred, love and war.
and more and more and more and more
and more of less than ever before
it’s just too much more for your mind to absorb

It’s scary like hell, but there’s no doubt
we can’t be alive in no time but… NOW!!!” 

This one’s for you, Busy.

Just a few weeks ago, I posted some top rankin’ songs in honor of Buju Banton, penned up in federal prison for the next 7 years. The first song I posted in Buju’s honor was by the Jamaican dancehall artist, Busy Signal, whose song “Jail” has sent dancehalls around the world into a serious jam session, with the entire hall shouting the lyrics in unison.  Its amazing to see hundreds of your brethren shouting, “No, we NOT go to jail again!!!”  The vibe is deep, particularly when those dudes in the dancehall are historically the ones who the police profile and arrest more often than any other group of men in this nation. So they know what they are talking about and there’s no denying its very meaningful.   Sadly, tho, my man Busy just got picked up in Kingston for old drug charges stemming here in the U.S. and was of course denied bail.  Just this morning, he waived any rights to not be extradited and thus he’ll be shipped to the U.S. in a month or so to face his old charges.  I hear the charges are in a state court, rather than a federal court, which to me means there is some hope he’ll be doing a short bid.  Fingers crossed and spirits lifted.  So tonight, I’m reposting “Jail” in his honor, and hoping all the dancehall DJs put this song back in their lineup, so we can all jam down for Busy.   “Like a ship, we gonna sail again…”
I’m dedicating this Gregory Isaacs song to Busy Signal too, “Idren Gone a Jail,” meaning ‘the children have gone to jail.’   Like Gregory said, “when me go to jail, me a go weep and wail.”  And like I have said and will continue to say, no one should be going to jail for drug crimes, especially not these artists who enrich our communities, our lives and our souls.  Gone for now but not forgotten, Busy and Buju.

This one’s for you, Buju.

These top rankin’ songs are dedicated to Buju Banton, who music critics once called the “next Bob Marley,” currently sitting in federal prison in Florida for the next decade for a crime many believe he did not commit. 

Talkin ’bout detention, detention.

The list of reggae songs about the plight of the incarcerated is pretty long, so here are just a few of the best roots songs.  I’ll do another post with some top ranking reggae songs soon, but for now, feel these roots. 
Probably one of the sickest songs about the plight of the incarcerated ever known to mankind, Izzy Vibes’ Jailhouse Rockin.  They said they wrote the song after a trip to Spanish Town prison in Jamaica.  Although the jailers made it seem like everything was cool, they could hear the prisoners locked far away shouting out to them, “everything is not as it seems.”   Know that.

Sometimes you just got those prison blues


Its interesting how many blues songs are about ONE prison in particular, to wit: Folsom Prison (duh).  I included a picture of Folsom so you can see where we house almost 10,000 (or possibly more) incarcerated human beings in max security. And thats just one max security prison in California, think about how many people are in max security in the rest of California and elsewhere in our vast nation? The statistics on just how many people are incarcerated today or have been at some point in the past are staggering.  I refuse to believe that such a huge fraction of our population should be caged in numbers that are setting records all over the globe.  Are we really safer? Studies say no.  Well then why do we keep doing it?  As I head into court this morning to personally see more people sitting in the “in-custody” boxes in the court rooms, waiting patiently to hear how long our government wants to send them down the river, I am befuddled why our government continues to do this. I mean let face it, our separated system of government with all these checks and balances is a brilliant system of government. But when such brilliance is contorted and demeaned by those with a little power, its a slippery slope until even the everyday-Joe’s such as yourself are carted off for our own bid.  Folks always talk about the slippery slope like its impending, but we’re already falling down the slippery slope of mass incarceration and there but for the grace of God go you and I. 

How many more prisons do we need, how many more songs must be sung, till our incarceration happy society realizes the heavy truth about imprisoning humans?  It aint right, kids.  It aint right.

The Classics.

A few tried and true songs that I bet influenced you as well. There are few things in this life as fun as boot stompin’ to Willie Nelson singing “Mama Tried” live… “No one could steer me right.”  -hb

Are the Mass Arrests of the Occupiers the End of the Occupy Movement?

Overview of Legal Grounds for Arresting Occupiers in the First Place: 

    The First Amendment limits the government from making any law “abridging the freeing of speech…or the right of the people peaceably to assemble.” But law enforcement have cited all sorts of laws when arresting the folks on the ground at Occupy.  We’ve all heard of folks getting arrested for trespassing [Penal Code § 602], unlawful camping, the catchall “crime” of disturbing the peace [Penal Code § 415].   But how is the government allowed to arrest us for doing these things when we’re Constitutionally allowed to assemble and talk politics, so long as we’re being peaceful? 

    Despite the mandatory language of the First Amendment, the government actually is allowed to abridge (i.e. limit) speech to some extent and just how much they can limit it actually depends on where you speak to some extent.  That means you can say one thing in one place that you may not be able to say in another place.  And that makes sense to some degree, right?  We can say a lot of things in our homes that we’d never say in public.  Similarly, the government is authorized to limit our ability to speak freely about politics depending on where we are. 

    So in these public parks and sidewalks where the Occupy movement is largely being played out, the law says a restriction on our right to talk about politics must be 1) a reasonable restriction on the “time, place, and manner” of our speech and 2) the law cannot restrict only the political speech (meaning the law cant be based on the content of our speech, i.e. restricting political, but not other types of, speech).   The law also 3) cant be vague or too broad and 4) the government cant have unfettered discretion in such restrictions (meaning the local police chief cant choose who gets to stay and who has to go willie nille since that gives them too much power). 

    Imagine, then, that you’re camping out with your friends in Justin Herman Plaza (hoped to soon be called Bradley Manning Plaza) in San Fran with the other Occupiers and the cops pull you out of your tent at 4 a.m., telling you to 1) leave or 2) get arrested.  Simply put, your options then are to either 1) leave or 2) get arrested.   Its difficult in the heat of the moment to get a copy of the law that they’re threatening to arrest you on, determine if its unconstitutional, and then convince the cop that it is so.   So what they say is going to happen at that point probably will.  

Do These Arrests Really End the Action?

    The ideological quandary there then becomes simply how far you’re willing to take it; are you willing to go to jail and fight your arrest in court, often a long drawn out process reminiscent in some ways of gambling, though here the gamble is with your criminal history with perhaps devastating financial, professional, familial or societal repercussions?  Well that’s up to you, as that’s a highly individual decision left to each protestor. 

    However, the constitutionality of many of the laws Occupiers could be arrested or prosecuted for has yet to be determined and how do we test these laws without being arrested for it, fighting it in court, and possibly appealing it?   Indeed, the arrest and prosecution may be an inherent part of the struggle to get the underlying message out.  Can and will cops continue to arrest the 99 based on unconstitutional laws drafted and enforced by the 1?  Frighteningly, the answer is yes… unless WE SAY NO.   Simple right?  We all know the 1% aren’t going to stop until someone stops them (you’ve heard of the quote “absolute power corrupts absolutely”).

    But if your decision is to change the law by getting arrested, make sure to get a lawyer who wants to fight it with you and not one who will advise you to take a plea without pressing for your (and our) rights.   The entire process is rendered moot by getting arrested and then pleading out to a violation in court when folks get scared with the formality of the courtroom, just like the process is rendered moot when we ask for change and then run scared at the first sight of the fuzz.

    So, while it would be nice if the government didn’t suppress our rights in the first place, they do and that’s a big reason why we’re protesting at all right?   The arrest, prosecution, and appeal process can actually help define the law for our society and for future protests.  We all know of many examples of how our society has changed for the better by the oppressed saying NO to the oppressive regime.   Thus, those arrestees who press on to fight their cases on ideological grounds are to be commended and honored as revolutionaries, and are critically necessary to a free and evolving society. 

    These mass arrests of the Occupiers aren’t the end of their protest then.  On the contrary, if you want it to be, its just the beginning.

Classic Rockers

I grew up listening to these songs and knew all the lyrics to Social D’s songs before I knew any of Johnny Cash’s.  Its a travesty I know, but I’m from So Cal, so it figures (I even used to think Scarlet Begonias was a Sublime song!).  These rock songs moved me even from a young age and I never listened to them without thinking about the songs’ meaning, that good kids were going to prison. 

Jailer, Jailer

We all know Peter Rowan from Old and In the Way, from his work with Grisman, or his varied and amazing solo stuff.  But this song brought it home to me today. Its a must listen.  

“Jailer, jailer, throw away the key…. For my cage is better than your cage.”  - Wow. True that. -hb

Can cops really search your car if they smell weed???


Is the smell of marijuana in your car enough to allow a cop to get you out of the car and search the entire thing?  In short, yes.  The longer answer is that law actually says they should NOT be doing it. But do they? Of course.  And many attorneys assume they can and that a cop’s word about smelling marijuana is impervious and don’t try to fight it.  But they should. 

Here’s the run down: 

You and I have a Fourth Amendment right to be free from unreasonable searches and seizures by law enforcement.  Our forefathers thought this was important because the British government could enter anyone’s house to search & arrest them, without any cause whatsoever.  Just because some snooty constable didn’t like they way a guy dressed, the government could issue “general warrants.”  Well our early government thought that was wrong and thankfully drafted the Fourth Amendment.

This Amendment limits the power of the federal (and now state) governments from searching your house  or arresting (a.k.a. seizing) you or your stuff unless they have a warrant supported by probable cause.  Probable cause to search is generally found where a reasonable person would believe, based on all circumstances known to the officer at the time, that a certain place contains evidence of a crime.  But don’t be fooled by how easily probable cause can be defined here, because its a difficult concept for lawyers and judges alike. 

In a case where there was probable cause to believe a car contained evidence of a crime, such as where an officer personally observed a driver chugging a bottle of tequila while on the freeway, the officer could certainly get a search warrant for that car.  That seems fair, right? But cars move, which means that, by the time an officer got a warrant, the tequila chugging driver would be long gone, probably passed out on his couch at home watching the Chargers lose.   So some judges realized that cars are too “readily mobile” to require search warrants and the judges allowed law enforcement to search a car without a warrant whenever they have probable cause to believe the car will contain evidence of a crime (like empty tequila bottles, etc.).  

So, again, where cars are involved, cops don’t need a warrant to search anywhere in a car they claim evidence of a crime might be (including your trunk or a locked briefcase).  We all have a reduced privacy interest in our vehicle precisely because we can use them to escape.  (Though you’d all know that I can’t get away too fast if you’ve seen my old Rav4, but that’s beside the point.)

Of course, the automobile exception isn’t the only way to get into your car.  They can search your car if they’ve already arrested you or if they are going to impound it, since its now inventory.  However, here we’re assuming a scenario of one sober man with fresh, unburned cannabis in his car, so I’ll leave a discussion of these other exceptions for another scenario.

So, you’re driving down the road and you get pulled over because you have a taillight out and you have some cannabis in the car with you.  The officer walks up to you and asks for your ID and registration, which you politely hand him through the slightly rolled down window.  He or she leans in to grab your documents and says, “do you have any marijuana in there.”  Knowing that you do and that it’s the sticky icky icky icky, so you know it reeks, you reply “Yes. But I have a recommendation!” 

The cop may check your recommendation or they may not.  At this point, its almost irrelevant in their mind.  All they’re thinking is “yes! I smelled it, so I can get in here!” And then they may pull you out and start searching, though they may let you go if you have (1) your medical recommendation documents, (2) they only find a small amount of cannabis (generally under 3 pounds in Sonoma County), and (3) there is no other evidence of sales (like your own incriminating statements/a scale/pay-owe notes/large amounts of cash) or (4) of driving under the influence (again, your incriminating statements/joints in the ashtray/smell of burning marijuana).  If they find other bad evidence, or if they just feel like it, they can and probably will arrest you.  

Whether they arrest you or not, your constitutional right to be free from unreasonable searches and seizures was just violated.  How, you ask?  Well, the prosecution often relies on a case called Strasburg (incidentally arising in our neighboring county of Napa) to say that odor of marijuana is probable cause to search a car.  But that case didn’t really say that at all.  What it actually said was that probable cause was present to search that car in that situation, which presumes that there will be situations when the smell of cannabis alone does not give probable cause.  In Strasburg, the cop saw a suspect smoking a joint in the driver’s seat of a car.  Also, when he asked the kid about the marijuana smell, the kid handed the cop a bag of marijuana but the cop could clearly see a second bag of marijuana in the car.  

So the court in Strasburg relied on two factors to support a finding of probable cause there; first, the kid was obviously smoking in the driver’s seat.  And what do driver’s do? They drive.  That raised the reasonable inference that the kid was going to drive while impaired from smoking.  The second ground was that the cop saw 2 bags of cannabis, though the suspect only handed him one.   Well back in the good ol’ days of 2007, our Legislature had enacted these weight limits on how much weight of cannabis a qualified patient (i.e. someone with a valid recommendation for the therapeutic use of cannabis) could legally possess.  Just last year in 2010, though, our state Supreme Court said that the state and various counties couldn’t really impose those strict weight limits where someone was over the limit, though they still provided a safe harbor from prosecution where patients were under their county limits.

Anyhoo, what this means is that there is no law that says the smell of marijuana alone is sufficient to search your car after you’ve given the officer your valid recommendation, though they’re going to go ahead and do it.  However, in the Strasburg case, the officer reasonably thought the guy may drive after smoking.  Thus if the officer in your case has no cause to believe that you are smoking and driving, then he has less factors to rely on to get into your car.  Also, since the defendant in Strasburg gave the cop one bag, but had another bag of cannabis showing in plain sight in his car, then the cop had reason to believe that the guy was over the 8 ounce limit in effect at that time in Napa.  Thus, if the officer in your case has no cause to believe you have more cannabis that is reasonable, then he again has less factors to rely on to get into your car. 

In Massachusetts, their high court recently held that smell was insuffient to grant probable cause to search a medical cannabis patient’s car and, even in California, a case came out just last month saying smell of cannabis was not sufficient to give probable cause to do a warrantless search of a package.  That means there’s hope in the near future to change this ridiculously abused standard. 

Also, if marijuana becomes legalized to some extent, rather than what we have now (which is mere decriminalization of a still illegal substance for certain people), then probable cause based on odor will further be eroded.  Just think of how many cops lie about smelling cannabis and get into someone’s car, home, etc! It’s a racket, particularly in places like Northern California where cannabis use and transportation has proliferated since its decriminalization.  So a cop could claim to smell herb and, even if he was lying, he’d have a pretty good chance at finding some.   

What this all means for us is that, although cops shouldn’t be searching through our cars without the smell of burnt marijuana, or some factor to believe you’re driving is impaired, or some reason to believe that your cannabis possession is somehow unlawful, they’re still going to do it.  So be kind to the officer, but be smart and shut the heck up.  

You also have a Fifth Amendment right to keep quiet and you shouldn’t be afraid to use it.  Then, get a good attorney and work together with that attorney to build your defense where they can present all the arguments to a judge, whose job it is to decide ultimately what was reasonable.  But, if your attorney says, “smell is enough, so forget that defense,” they’re technically wrong.  And when that technical mistake costs you (what I believe to be) your greatest and most precious right, your Fourth Amendment right, its time to get a new lawyer.