As Initiative 502 passes into law tonight, no one in our criminal justice systems will know for sure what it means.  Will the passage of I-502 be the first crack in the Berlin Wall that is nationwide prohibition?  Will the passage spread through to other States in 2013 and 2014?  To what extent will the federal government tolerate the open sale of marijuana?  Will the law be applied evenly throughout the state, or will eastern Washington continue to lag behind in the liberalization of marijuana laws?  Here are my predictions:

1.  The Feds adopt a wait and see approach.

Although the possession or sale of marijuana remains illegal under federal law, the federal government will likely take no immediate action against I-502.  As with our passage of medical marijuana 14 years ago, the federal government will be slow to completely invalidate a state policy decision on a controlled substance.  The federal authorities sat back until 2010 to begin action against the larger medical marijuana dispensaries in Washington, and we certainly won’t see any immediate action from the federal authorities now.

2. Increased marijuana DUI enforcement. 

Marijuana-related DUI charges have traditionally been rare in this country.  The effects of marijuana intoxication are more subtle than with alcohol, and the scientific studies indicate that marijuana does not have a predictable effect on a person’s ability to operate a motor vehicle.  However, I-502 has set a legal limit of 5 nanograms of THC per milliliters of blood.  I predict that the Department of Licensing and the law enforcement of the state will begin to enforce that new provision immediately.  Although I-502 will likely not lead to many new marijuana users, the perception of law enforcement will be that marijuana use will increase ten fold overnight.  Starting today, every law enforcement officer will feel he or she has a new job – standing as a bastion against “stoned” driving.

 3.  Zero tax revenue.

Initiative 502 was sold on the Washington voters as a good source of tax revenue.  While the voter initiative calls for such a regulatory structure, timid state officials will not license marijuana stores out of fear of being viewed as an “accomplice” to a violation of federal law.  If the state isn’t licensing the stores, they will find it difficult to collect any taxes.  My prediction is a net tax revenue for 2013 of zero dollars.  The more likely scenario is that sales of marijuana will continue on a gray market to people who believe they are buying marijuana legally because they voted for Initiative 502.

4.  Prosecutions continue in eastern Washington.

The legalization provisions of I-502 did not go into effect as of 8 p.m. tonight.  Rather, the law takes effect on December 6th.  As pointless as it may seem, hundreds of people will be arrested and cited for marijuana possession between now and then, particularly in rural eastern Washington.  Additionally, even after December 6th, prosecutors in eastern Washington will find ways around Initiative 502.  For example, during a traffic stop, if a person admits to sharing a little marijuana with a friend, or admits to intending to share, they will be charged with felony charges of delivery of a controlled substance, or possession with intent to deliver.  Likewise, people could be charged with possession if they admit to having possessed the marijuana in Washington State prior to December 6th.  This might sound silly if you have never practiced over there, but this is the difference between the Seattle area and the rest of the State, and this uneven and inconsistent enforcement will continue post I-502.

Initiative 502 may decriminalize the possession of small amounts of marijuana, but let’s face it, people don’t buy marijuana just to “possess” it.  The point is to ingest the marijuana.  But if you do use it, don’t go anywhere near a car for the next 4 or 5 days.  Because under Initiative-502, you can’t have over 5 nanograms of THC in your blood if your operating a car.  For those of you unfamiliar with the concept of a nanogram, it is one billionth of a gram!  For regular users or medical cannabis patients, you can never legally drive!  Here are few tips from a criminal defense lawyer on how to survive post-Initiative 502.

1.  Take Opiates Instead.  If you are a medical marijuana patient, go back to using powerful opiate painkillers.  We understand you gave up methadone, morphine or Oxycontin for medical cannabis because it is safer, cheaper, and it doesn’t leave you feeling like a zombie all the time.  But there is no per se legal limit for driving under the influence of Oxycontin.  None! And the state toxicology lab will also have a hard time proving you are impaired because drugs effect everyone in different ways.  (Disclaimer: This law firm is not legally responsible for overdoses or deaths, or robberies of Walgreens caused by this advice.)

2.  Drive absolutely perfectly.  If you have used marijuana in the last 4 days, don’t give the police any reasonable suspicion to pull you over.  Make sure your tail lights aren’t cracked, make sure your have mud flaps on your car even in July, make sure you license plate illumination bulb is functional, and don’t drive 56 mph in a 55 zone.  Don’t drive 54 mph in a 55 zone either, that is suspicious too.   “Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you.”  U.S. v. Broomfield (2005).

3.  Don’t go to eastern Washington.  It is not the marijuana itself that eastern Washington police hate, its the smug view of the west-side electorate and their voter initiatives that will put them out of work.  For the last ten years in eastern Washington, you were often worse off being caught with marijuana and a green card then with just marijuana by itself.  The police hate I-502 in eastern Washington, and they will be determined to fill their jail cells with new 5 nanogram DUI cases.

4.  Avoid the odor of Marijuana.  The police of Washington State have bionic noses.  Even if you smoked marijuana 10 hours ago, the state patrol can still manage to sniff that on a windy day along side the highway. And don’t even think about hanging a tree air freshener on your mirror.  The police consider that probable cause for arrest.

5. Don’t Toke until you are 21.  At one time in our nation’s history, it was socially acceptable to try marijuana when you were young and in college.  But under I-502 it is considered a marijuana DUI to have any level of THC in your system over 0.00. The FDA allows 30 parts per billion of arsenic in drinking water, and 23 parts per billion of lead in eggs for school lunches.  But if you are under 21 it is a DUI to have any THC in your system at all!   If you are under 21, find another drug!  Heroin, cocaine, MDMA, and huffing gas and aerosol containers all have no per se legal limit!

6. Take the fifth.  When asked by a police officer if you have smoked marijuana in the last 24 hours, take the fifth. Invoking this right was once associated with mafia dons and McCarthyism but it will need to come back in style if drivers are to avoid giving the police probable cause to arrest them for Marijuana DUI.

7.  Get used to an Ignition Interlock.  Under Washington DUI laws, if you refuse a blood test you will need to obtain an ignition interlock device on your car, even if you were arrested for driving under the influence of marijuana.

For the straight scoop on whether marijuana effects driving see here and here.  For more tips on surviving in an absurd society see here and here.

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Will Initiative 502 pass?  Yes it will.  The latest polls show that the law is ahead in the polls 53% to 44%.  It is true that California ran a similar ballot measure in 2010 that failed.  However, that measure in California (Proposition 19) was behind in the polls at the time of the election (45% for, 53% against, at the end of October).  The reason why Proposition 19 was defeated in California was because the opposition raised the specter of “stoned drivers” and because the law lacked a regulatory framework to convince the voters that the sales of cannabis would be tightly regulated.  Mothers Against Drunk Drivers ran opposition ads in October, 2010 to proposition 19.  In Washington, the opposition to Initiative 502 has not been well-funded.

Questions remain about the fairness of the law in the treatment of people accused of “Marijuana DUI.”  Many such charges will be based on spurious evidence as the “green tongue” phenomenon. The law also envisions a marijuana sales network regulated like state liquor stores.  It is questionable whether the federal government would ever allow such a regulatory scheme.   In eastern Washington the federal prosecutors essentially closed all the medical marijuana dispensaries.  It is hard to imagine them tolerating state-run marijuana stores.  At this point it seems like a foregone conclusion that the law will pass.  The question that remains is how will Initiative 502 be implemented?  We will have more on this later….

 

With the latest polls showing that marijuana decriminalization Initiative-502 is highly likely to pass, many people are asking about the practical effect of  I-502 in the short term.  As a criminal defense lawyer who handles a lot of marijuana cases, here is my opinion on what to expect, and what not to expect in the short term.

1.  Pending Cases

I-502 does not mean that all pending marijuana possession charges will be dismissed.  By its terms, I-502 doesn’t apply retroactively.  However, prosecutors will be left wondering whether there is any point in continuing prosecutions of simple possessions of marijuana.  Jurors are already ambivilent about having to come to court for small, seemingly-harmess marijuana cases.  If Initiative-502 passes, jurors will really be confused about why the government is even bothering to prosecute.  However, you can expect many police officers to continue to cite people for marijuana possession right up to December 6th when the law goes into effect.

2.  Traffic Stops

The passage of I-502 will not mean the end of harassment for marijuana users.  Rather, the battleground for the war on drugs will merely shift.  If you are pulled over for traffic infractions (such as speeding or broken tail light), you can expect an increased interest by the police in determining whether or not you are “under the influence” of marijuana.  Initiative 502 places a legal limit of 5 nanograms per milliliter for THC in a person’s blood.  When I first started working as a lawyer in criminal courts in 1994, “marijuana DUI” were almost unheard of.  However, I have defended more and more such cases in the last few years, and the WSP has requested 2 million dollars in extra funding just to enforce I-502’s new 5 nanogram limit.  Many of the arrests for Marijuana DUI will be based on such spurious evidence as the “green tongue” phenomenon.

3.  Medical Marijuana Cards

The passage of I-502 will likely be of some help to medical marijuana patients involved in battles over the legitimacy of their medical card.   Many people charged with possession of marijuana have out-of-state medical cards that aren’t being recognized in Washington.  Likewise many medical marijuana patients find themselves in court because their medical card was expired.  I-502 is likely to help patients fight their legal battles.  This is particularly true in more conservative jurisdictions that have been construing medical marijuana laws very narrowly.

4.   Selling Marijuana / Buying Marijuana

Pete Holmes, the city attorney for Seattle has promised that the passage of Initiative 502 will mean that “adults will be able to buy an ounce of marijuana at a retail store confident that it was produced in Washington free of herbicides pesticides, mold or other contaminants.  502 will thus be a boon to Washington agriculture.”  This will not happen in the short term, and will never occur until the federal government liberalizes its policies toward marijuana.  Despite the limited decriminalization in Washington, the possession or selling marijuana is still illegal under federal law. Anyone attempting to open up a “state-licensed” store will face overwhelming legal obstacles, and will face federal prosecution.  If you have a current pending charge for the delivery of marijuana, I-502 will likely not be of much assistance to you.

5.   Marijuana Possession at the U.S. Border

When travelers are searched at the border entering from Canada, the possession of marijuana can lead to charges in state court, and this can be an absolute nightmare for travelers.  Although it it is a felony under federal law to import even small quantities of marijuana, these charges are almost always referred to State court for prosecution. With the passage of Initiative 502, the State courts will have difficulty prosecuting such cases. It is unlikely that the federal prosecutors will bother with such small amounts. People caught with small amounts of marijuana at the border will likely face a small civil penalty and will be served with papers barring the person from ever re-entering the U.S.

What do you think the immediate practical effect of Initiative – 502 will be?  If you are a marijuana user, does this 5 nanogram limit concern you?  How do you think prosecutors will react to this new law?

The future is unknown for inmate L3955, Jeffery Havard. Havard has endured Death Row for the last ten years in Mississippi and time is running out. What really happened on the night of Feb. 21 2002?

According to Havard, on Feb. 21 Havard was giving his girlfriend’s six-month-old daughter, Chloe Britt, a bath after she had spit up on herself. As Havard picked baby Chloe up out of the bathtub, she wiggled out of Havard’s arms and struck her head on the toilet.

Havard claimed that Chloe seemed to be unhurt and put her to bed. Her mother, Rebecca Britt, found Chloe later that night blue and struggling for breath. Chloe was rushed to the hospital and pronounced dead later that night.

The cause of death was determined through an autopsy conducted by Steven Hayne, a self reported expert on sexual assault. Hayne determined that the cause of death was Shaken Baby Syndrome, which is a severe head trauma that appears after shaking a baby violently. It was also concluded that her anus had minor damage and dilation that usually is consistent with sexual assault. Hospital staff also reported that there was minor damage and dilation to Chole’s anus.

The combination of these reports ultimately convinced the court to find Havard guilty for the murder and sexual assault of six-month-old Chloe. Resulting in a capital murder charge punishable by death.

This is where the case becomes much more complicated, and many of the facets of the case become much too convoluted and difficult for a jury to pass judgment on.

Initially, Chloe’s mother testified that Havard never changed Chloe’s diapers, bathed her, or cared to spend anytime with her at all. Following the conclusion of the trial, she changed her testimony by stating that in fact, Havard loved Chloe and had always changed her diapers, bathed her, and fed her.

Furthermore, and more importantly to Havard’s innocence, during the trial, Havard asked the court to allow an independent expert to make an educated statement based on the results that he had found. The court denied this request, stating that Steven Haynes, the doctor who conducted the first autopsy, expert opinion was sufficient enough for this case.

As of today, Steven Hayne is no longer allowed to perform autopsies or testimonies in the Mississippi Jurisdiction. It has been proven that Hayne on several different occasions spread false information.

After Havard’s death sentenced was pronounced, several independent medical examiners reviewed the results and found that much of the information conveyed to the court was indeed false.

Dr. James Lauridson, a medical examiner from Alabama, and Physician Dr. Michael Baden, both concluded that the autopsy results were untrue.

In fact:

1. The dilation of the anus by 1cm is a common resulting cause of trauma to the head.
2. The anus damage was most likely not caused by a sexual act, rather from an insertion of a thermometer into the anus while in the care of nurses in the hospital. Often, when dealing with infants, nurses are directed to insert a thermometer 1 cm into the infant’s anus, to conduct an accurate temperature reading.
3. Chloe’s head trauma matched Havard’s story about Chloe hitting her head on the toilet.
4. No forensic DNA had been found around or inside Chloe’s anus.

All findings after the decision on Havard’s case have been ignored and denied by the Mississippi Supreme Court.  The objection by the Mississippi Courts to review renewed testimonies and overruling evidence has made it impossible for Havard to escape death row.

Even with public outcry over this case, The Mississippi Supreme Court continues to deny Jeffrey Havard the justice that he deserves. Havard recently communicated to the public through a jailhouse phone interview on BlogTalkRadio in which Jeffrey admits that a day does not go by that he does not think about Chloe and how his negligence of dropping her, forfeited her life, but he will refuse to stop attempting to reach out to the public and explain what really happened the night of Feb. 21^st.

Until that time, the clock is ticking. Jeffrey Havard sits on death row as inmate L3955 with thousands of supporters though Free Jeffrey Havard , Change.org, TheSilentVoices, and many others.

Little over 2 years after I called it quits on GMA, Ferry County Commissioners have found a new (permanent) attorney to handle their GMA cases.  That attorney is Liam Michael Golden, who more recently has been fighting in the criminal realm, see here, here and here.  Michael Golden’s background includes a lot of civil cases, and so I went backed and looked at some of the big growth management battles he was involved in when he was at Lewis County.  Here they are a couple of subjects he battled:

Agricultural Lands

Under the GMA, counties are required to designate and protect agricultural lands, and this usually means by preventing farmers from subdividing their land or otherwise converting the land to non-agricultural uses.  Lewis County took this issue to the State Supreme Court where the judges ruled that the definition of “agricultural land” designated for conservation under the Growth Management Act (GMA) is properly based not only on soil and land characteristics, but also on farm industry’s projected needs.

Urban Growth Areas

The GMA requires cities to establish urban growth areas that limit urban growth to limited areas surrounding a city.  When three Lewis County cities had their urban growth areas expanded, a conservation group sued, and the Growth Board held that the boundaries were too large because the boundaries exceeded the cities’ 20-year population growth forecast.

There are many similariies between Lewis County and Ferry County. Both counties did not traditionally have any zoning regulation prior to the GMA.  In both counties, the GMA has been very controversial and hotly contested.  Here is an excerpt from a Growth Board decision discussing a member of the Lewis County Planning Commission:

 The Planning Commission member reviews the written submission of the Petitioners and states that he believes the Petitioners are “speaking with forked tongue”. Then he begins what he calls “the sarcastic part” of his comments: The goal of the Petitioners, he says, is to stop the capitalist way of life. He goes on to say that they would like to make the county into a park and make themselves park rangers. The Petitioners are said to be promoting the reversion of all lands back to nature and horse-drawn vehicles.

 Sound familiar?

As a lawyer who defends a lot of college students on charges of MIP, I sometimes wonder how often the police just issue someone a warning rather than writing them a ticket.  Well, we got a little glimpse of this last week when a Daily Evergreen reporter went on a ride along with an officer with the Pullman Police Department.  The Daily Evergreen reporter, Patrick Groves, reported on his evening by twitter.  Groves reported on numerous instances when the police encountered underage drinkers, and simply gave the minors warnings.  It was only when the minors lied about their identity, were argumentative, or uncooperative that they were cited for minor in possession of alcohol.

If the MIP laws are not being consistently enforced, you have to wonder if the drinking age should really be 21 after all.  Granted, it seems like the individuals that Groves chronicled were being truly disruptive. Groves didn’t report any favoritism on the part of the police. However, police may not conduct themselves the same way when they have a reporter riding in the back seat.  One complaint that I often hear from parents on MIP cases is that their son or daughter was being singled out or picked on.  An MIP charge on a student’s record can often appear on background checks when someone is applying for a job.

Even different officers on the same police force can have different policies on underage drinking. Drinking is so prevalent among college students that it seems like judges aren’t quite sure what to do with the cases when they come to court. If a case goes to a jury trial, jurors are often flabbergasted that a case like that would actually be brought to trial. An odd thing about Washington law, is that it is actually more serious for a minor to be caught with alcohol then with marijuana. Possessing alcohol is a gross misdemeanor (punishable by up to 364 days in jail) but possessing marijuana is just a misdemeanor (punishable up to 90 days jail).

Another interesting thing about Groves’ night was the frequency that the Pullman police had to deal with individuals urinating in public. Under Pullman city code section 5.50.010 the first offense is an infraction, and the second offense is a misdemeanor. I can’t imagine that a conviction for urinating in public would look very good on someone’s record.

Visit our other posts on MIP and marijuana.

What do you think about the police enforcement of these laws in Pullman?  Post your comments below.

People arrested over the weekend for DUI in Spokane are typically cited by the officer and told to appear in court at on Monday. Here is what you can expect at that 3 p.m. Monday court date.  

Where to go:

Usually the ticket from the officer tells you to go to courtroom 1.  This courtroom is in the public safety building behind the Spokane County courthouse.  You have to go through court security to get inside, so come early because there is sometimes a line.  Leave any unnecessary belongings in your car because the metal detector can be quite sensitive.  You will be asked to take off your belt before you go through.  The actual courtroom is on the east side of the building up a long flight of stairs on the mezzanine. Dockets listing everyone’s name are  posted outside the courtroom.

What will happen:

The judge will go through the docket and do a roll call to see who is present.  Usually the judge will take the cases that have private attorneys first.  This first court date us usually call a “first appearance” or “preliminary appearance” or sometimes a “bail hearing.”  The purpose of the hearing is to make sure there is probable cause for the charge, to set conditions of release, and to see if a defendant will be needing a public defender.

— Probable case:

Typically the prosecutor will read (or summarize) a police report and will ask the judge to find probable cause for a charge of DUI.  This hearing does not require proof beyond a reasonable doubt.  People often feel as if the officer makes some exaggerations or embellishments.  However, this is not the time for you to tell your side.  It is best to say as little as possible until you can talk to an attorney.  The judge will tell you this too if you try to speak about the incident.  If the judge finds that there is probable cause for the offense, then he or she will set conditions of release.

— Conditions of release:

The judge will order you to obey all laws and to not drink alcohol until you get your DUI case resolved.  If you have a prior history of DUI charges, the prosecutor may ask that you be held on bail, or he may ask that you sign up for random urinalysis tests to determine if you have been drinking.  Also, you may be ordered to wear an alcohol monitoring bracelet on your ankle.  The judge may ask that you remain in the State until your case is resolved.  So if you work in North Idaho, or have good cause to leave the state, now is the time to let the judge know this.  Often times a person will be asked about their ties to the community.  A judge doesn’t want a defendant fleeing the state.  So you may be asked how long you have lived in the area, or if you have a job or family or own property in the State.  The judge will fill out this form and ask you to sign it.  You will be given a copy to take with you.

— Appointment of an attorney:

If you are asking that an attorney be appointed at public expense, you will be asked to fill out a form that asks you about your income and assets.  If you qualify for a public defender you will be told how to contact him or her.  There are usually public defenders present in court that will offer assistance.  If you will be hiring a lawyer, the judge will usually give you a week or two to get this done before the next court date.

The next step:

The next step is usually to meet with your lawyer.  The lawyer will request a copy of the police reports, and may seek out other information.  Sometimes the police will have video from a dashcam in their car, or a video camera in the jail.  Occasionally a security camera will capture the DUI stop itself.  Attorneys will sometimes request a copy of the radio traffic of the officer discussing the case with dispatch.  It is important  to request such information right away so the file is not recorded over.

For more information on DUI, visit our website, or our other articles on deferred prosecutions, marijuana DUI, DUI under .08.

The Spokane area has seen an increase in criminal charges related to fake ID possession.  Particularly in the area of Gonzaga University, local officials have noted an uptick in the number of cases.  Parents are often disturbed to hear that a son or daughter has been charged with possession of a fake ID.  The alcohol consumption alone may not be a surprise, but charges for fake identification can create concerns about the teen’s future.  Charges for a fake ID can vary, but they always involve a mandatory court appearance, and a risk of jail time and a criminal record. The typical charge for possession of a fake ID is RCW 66.20.200 which makes it a misdemeanor to procure or possess a card of identification not issued to him or her.  As with any misdemeanor, the offense is punishable by up to 90 days in jail and $1000 fine. Supplying another with a fake ID is a gross misdemeanor under RCW 66.44.328 and is punishable with a sentence up to 1 year in jail and a $5,000 fine.  Alterations to an existing identification card have also been known to result in felony forgery charges in certain circumstances.

A charge for possession of a fake ID or driver’s license usually arises when an underage person is caught in a bar or tavern by the police.  Charges can also arise when a bartender, doorman, or bouncer seizes a fake ID from a young person attempting to get served.  Bars and clubs, particularly in more metropolitan areas such as Spokane, use ID scanners that can electronically check the validity of an ID, and often times photograph or document the use of the fake driver’s license.  There is no consistent way that bar owners handle this issue.  Some taverns are quick to contact law enforcement, whereas other bars will simply eject underage would-be patrons.   Some establishments will scrutinize an ID or driver’s license carefully to detect forgeries, where other clubs will seemingly accept any “identification.”

When the police discover a fake ID, it is often due to a law enforcement check on a bar or night club.  Sometimes, in areas such as Spokane or Pullman, law enforcement will stage a dramatic “raid” on a night club.  However, more often police will visit a tavern to respond to someone who has passed out at the bar.  In these “raids,” the police are also after the tavern owners who they feel are profiting off the illegal sales to minors.   Usually it is something else that gets the officer’s attention, such as threats made, or rowdy behavior.

A conviction for having a fake ID can be troublesome for the future of a young adult.  Such a conviction can cause problems with security clearances, or getting a job at a bank.  Often times financial institutions or other related corporations will reject job applicants with such convictions.  All employers look at is a criminal record on paper, and not the underlying circumstance.  Employers don’t necessarily distinguish between a fake ID used by a teen to keep up with older friends, and a fake ID that is used to commit fraud, criminal impersonation, ID theft, or used to threaten national security.

Using Someone Else’s Driver’s License

A common way in which a minor produces a “fake” ID, is when he or she produces the license of another person who the minor feels looks similar.  This is prosecuted under the same statutes as discussed above.  Usually the “similarity of appearance” is not assessed by anyone objective and the bartender recognizes the ruse.  However, not all bartenders or doorman are very careful.  Being caught with the license of another often will cause the police to wonder if the license holder gave the license in question to the minor.  When questioned by police, the minor faces the uncomfortable choice between incriminating an older friend, and confessing to the “theft” of the license of another.  When faced with that question, occasionally a savvy teen that will decide that it might be time to talk to the family lawyer rather than dig themselves further into a hole.

Fake ID over the Internet

In eastern Washington it is becoming increasingly common for college students to obtain fake IDs over the internet.  Fake identifications are often advertised on sites that are popular with college kids.   Facebook doesn’t accept advertisements for fake IDs but other social networking sites do accept such advertisements.  These fake IDs are often advertised as “novelty items” thus leading young people to think that having a fake ID is not a serious matter.  Websites in the US that offer fake IDs are usually shut down rather quickly by the FTC (Federal Trade Commission).   Usually the sites that currently offer the most sophisticated fake IDs are operating overseas in such countries as China.  These fake IDs often come with working bar codes, holograms, and hidden markings visible only by ultraviolet light.  Usually fake IDs consist of imitation driver’s license from other states.  It is often difficult for bartenders and bouncers to spot a fake ID from another jurisdiction.  In college towns it is not unusual for students to keep their identification from their home state through all four years of college.

For more information on the court system process for a fake ID, visit out website.

It is common knowledge that unmanned, remotely controlled aircraft have become invaluable tools for the U.S. military fighting insurgents and other ne’er-do-wells overseas. Like reports from Afghanistan and Iraq, strikes in Pakistan and Yemen frequently make the news. Just a few weeks ago the Los Angeles Times discussed how the Department of Homeland Security would soon be using drones across the Caribbean to help monitor large swaths of the sea for drug traffickers. While such uses seem understandable and safely far away, the worry among many who value their privacy is that the technology is creeping closer and closer to home.

 

Tracking down those engaged in the drug trade is a frequent and favorite use of drone technology. A recent report in the Huffington Post mentioned how anti-drug forces in Bolivia are now using Israeli-made drones to help hunt down drug labs and cocaine farms across the country. Felipe Caceras, Bolivia’s anti-drug czar, claims that some 240 drug labs were shut down in just one month thanks to drones.

 

The lesson learned in Bolivia has not been lost on those working in drug enforcement in the United States. A report recently revealed that the Department of Homeland Security has been testing Predator drones over the Bahamas for the past 18 months. The tests were meant to help pave the way for a much larger, multi-million dollar program aimed at expanding the number of unmanned surveillance flights taking place in the Caribbean and the Gulf of Mexico to fight drug smuggling.

 

According to the Los Angeles Times, the decision will result in a dramatic increase in the number of U.S. drone flights taking place in the Western Hemisphere. Perhaps more shocking given how little attention the story received, is that this one project will double the square miles covered by Homeland Security drones. The aircraft will be based primarily in the United States, with one base in Corpus Christi, Texas and another in Cocoa Beach, Florida. It’s possible that future bases will be constructed in Puerto Rico and the Dominican Republic, depending on the success of the program.

 

While many might not mind these international forays, it might come as a surprise to hear how often drones hover above American soil. A recent interview with U.S. Senator Olympia Snowe, Republican from Maine, revealed her concern about the increasing use of the devices in the United States. Snowe described how she supported an amendment to something as benign as the farm bill that would have prohibited the Environmental Protection Agency from conducting aerial surveillance of farm operations. “Unfortunately that failed to get the 60 votes necessary.”

 

Snowe says she sees situations where drones are useful but hopes they will be limited to patrolling border areas. Snowe, as well as many who worry about the impact such devices have on the privacy of ordinary Americans, hopes that Congress addresses the brewing problem by spelling out when and where local law enforcement will be permitted to use such drones. Handing over responsibility for rulemaking to an agency like the FAA (which currently oversees requests to use drones) minimizes the importance of the threat they pose.

 

As we discussed previously, remote controlled aircraft have become increasingly sophisticated and include models that can silently hover over a location for hours undetected, providing a stream of video and other surveillance data to officers in a command center. Drones today range from plane-sized crafts capable of carrying missiles, to units easily stored in backpacks and launched by hand. They pose a huge privacy risk with cameras that can provide high-resolution pictures and lenses that are able to take pictures in very low light, or even in the dark, with the help of infrared lenses.

 

Groups like the ACLU say that drones should be prohibited from spying based on First Amendment grounds. The group, as well as other privacy advocates, argues that there should be “specific and articulable” evidence that a crime has been committed before the remote controlled aircraft can be used. Warrants should be required before the devices ever liftoff and drones should not be permitted to hover aimlessly in the sky, watching and waiting to strike.

 

While many are worried about the growing use of drones at home, other groups, especially local police agencies, are clamoring for increased access to unmanned aircraft. Law enforcement agencies across the country are actively lobbying for permission to use such drones for day-to-day operations. They claim that the aircraft offer huge financial savings rather than using piloted aircraft or helicopters.

 

Local law enforcement has the strong backing of another group: the manufacturers of these drones. If the companies have their way, skies over civilians’ heads will soon be busy with unmanned vehicles. Drones are a major growth sector in the aviation sector, with dozens of companies competing for a share of the incredibly lucrative market.

 

CNN profiled one such manufacturer, Insitu Pacific, and its managing director, Andrew Duggan. Duggan is hoping that the FAA relaxes rules on the non-military use of unmanned aerial vehicles. He claims that the controversy exists over an unfair stigma attached to the term “drone” thanks to a handful of unfortunate incidents abroad. Tellingly, Duggan said, “People are hung up over privacy, but it’s a lot of unnecessary drama. They are no different from having a police helicopter over your head, or a security camera pointed at you.”

 

The spread closer to home has begun in earnest as a recent trove of documents revealed just this week. The FAA agreed to release some 125 drone certificates as well as thousands of pages of accompanying documents in response to the Electronic Frontier Foundation’s Freedom of Information Act lawsuit against the agency. One of the groups found to have applied for and received authorization to use such drones is located right here in Washington. The following is a summary of the Seattle Police Department’s planned use of the drones:

 

The objective of our program is to create a higher standard of safety for members of our community by utilizing the Draganflyer [sic] X6 Unmanned Aerial Vehicle in support of numerous Law Enforcement related functions which could include but are not limited to:

 

1)    Crash site related to interstate transport of hazardous materials

2)    Crash site related to railroad transport of hazardous materials

3)    Search & Rescue operations

4)    Tactical support of Law Enforcement operations

 

As is so often the case with such programs, the devil’s in the details and the details here are definitely lacking. The fourth example given by the Seattle PD is exactly the kind of language that concerns those worried about the impact of drones on their privacy. The police department offered no explanation as to what the limits of this support might be. While we wait on further word, it’s probably good advice to keep an eye to the sky.