OH! CANADA! POT BUSTS AT, ON (OR NEAR) THE BORDER © Jeff Steinborn, Lawyer, NORML Legal Committee Member Seattle, WA* email@example.com.
Don't touch my bags, if you please - Information for our Canadian brothers and sisters
Every step taken in the name of the war on drugs moves us further from that war's stated goals. The inevitable consequences of prohibition enrich the black market merchants, while a heavy price is paid by those in our society who most need help -- minorities, the poor, the desperate and the foolish. So it is with the intensifying efforts to stop marijuana from coming in from Canada. First it was Mexico, then Colombia, then Asia, now Canada. As our borders have tightened, a thriving domestic pot industry has risen to meet the demand, which, in spite of vigorous prosecution and propaganda, has remained large and relatively stable through several decades. This new cottage industry has developed not just within the United States, but also so in our more tolerant neighbor to the north. Now the established U.S. domestic growers complain: "I wish the border patrol would do a better job. These cut-rate Canadians are destroying the market." More recently the complaints have escalated: "Stop supporting Canadian terrorists; buy domestic pot." But I digress . . . . .
Consumers, of course, applaud the Canadians. Competition is the American way, and it's good for you. That's capitalism. But for those poor folks caught smuggling pot, the consequences can be devastating. And, in my experience, those consequences fall not upon those who have profited the most from this futile prohibition, but upon a lot of just plain good folks who fail in their big gamble to break out of their less than satisfactory lives. In their failure they often pay a terrible price: their freedom and their futures. So, I respectfully offer to our brothers and sisters in Canada, their friends south of the border, and any other brave soul who is thinking about running the border, these UGLY REALITIES: LEGAL INFORMATION FOR CANADIAN (and other) POT SMUGGLERS
My Uncle Sam would frown were I to tell you how to smuggle. The truth is, I don't really know much about it. I think, however, I am allowed to tell you of some of the many traps out there designed to capture you, if only in an attempt to persuade you to desist. Deterrence is, after all, one of the goals of law enforcement, isn't it? I've always thought so, though I did have one experience that made me wonder. I once made a proposal to a prosecutor. I suggested that if his office would pay half the cost of a full page ad in the local newspaper explaining the awesome consequences of being caught dealing drugs, I would pay for the other half. I seem to recall offering him editorial control as well, though it was a long time ago, and some of that memory has faded. We may not have reached that point in the discussion. He laughed at my proposal. I still think it's a good idea, so here's my longer version of that full-page ad. No doubt it would have been more objective had I been able to recruit a prosecutor to join in as the final editor.
Running The Gauntlet: A few of the many ways to get caught
At authorized border crossings, in simple terms, it's the eye of the inspector, the nose of the dog, and the memory of the computer. If you look funny, smell bad, have been crossing too much, or are just not lucky that day, somebody will pull you over to "secondary" inspection. At the airport, and at other places where time allows the research, if your name has ever entered the computer for any suspicious reason, odds are Customs will pull you over. If you are near the border, there a certain things that law enforcement will be looking for: one, two, or three males in a rental car or pickup truck, particularly at night, are almost certain to be stopped, or at least placed under surveillance. Hockey bags are considered nearly probable cause. Once you are suspected, you're fish in a barrel. Without a warrant, or even a shadow of a suspicion, the police at the border can:
Increased security in the wake of September 11 makes the odds of getting searched thoroughly even greater. Now they're even checking shoes. God help us all the first time some terrorist gets caught with a keester stash.
At remote crossings where no one could possibly observe (there may still be such places): The only ones I hear about are the ones that are now guarded by wireless remote sensors that detect persons and vehicles. Although it is difficult for the sensors to distinguish between deer and people, they find a way, often by just putting the sensors high enough that four-legged animals pass under them. Where there are sensors, there are officers standing by to respond. If you set off a sensor, it will relay to a pager in the possession of the border patrol officer who is closest. They are never far away, and they live there, so they know the area better than you do. They will then come looking for you.
If you are seen by an officer who has reasonable suspicion that you crossed the border and that whatever crossed with you is still in the car (or on your person if you're walking), you may be lawfully stopped and searched. But if the chain has been interrupted -- if you have stopped and let someone or something in or out of the vehicle, then that power evaporates, and then probable cause is required to search you. This, in a few words, is a summary of the complex law of border searches.
But wait! There's one more: the "Terry stop," named after one of the most important cases in the history of the definition of the "interface" between the police and the citizens they protect. When you step outside your home, you become subject to a Terry stop. Where a police officer has an "articulable" reasonable suspicion that crime is afoot, s/he has the power to stop you and ask what you're doing. Once stopped, of course, the officer will find a way to develop "probable cause" to search you, and that's it. People doing funny stuff at the or near the border will be stopped if they are seen. Period.
And then, of course, there are boats. While the law is slightly more complicated, as a practical matter, boats can be stopped, boarded and searched virtually anywhere, for any reason. In navigable waters, a Coast Guard "safety" inspection can be conducted at the whim of the officers.
No discussion of how to get busted is complete without a discussion of snitches. Lots of folks get busted in the middle of a smuggling scam because someone fingered them. Informants are much more prevalent in the marijuana trade than in other situations since most marijuana growers are non- violent and wisely refuse to treat informers in ways that are customary if not mandatory when it comes to other crimes. This benign attitude allows some cowardly rats to make highly paid careers out of snitching. Most snitches, however, are just poor suckers who got caught and were unable to stand up to the United States Government's enormous coercive power. Uncle Sam can make you rat out your mom.
Anyone who spends much time around the criminal justice system knows that the United States has reversed its moral compass on this issue. Snitches have been universally detested throughout history. We all remember Judas. Dante reserved the innermost circle of Hell for informants. Benedict Arnold was the eponym for the lowest form of biped life in all of North America. Linda Tripp will be reviled for all of history. But today, informing is a major part of the growth industry we call the criminal justice system. It's tax-free and inflation proof. Rewards in five to six figures are common. The government buys the testimony it wants/needs with freedom, cash and who knows what else. Without informants our justice system would grind to a halt like pulp mills without trees. Any two-bit criminal who finds him/herself in trouble with the law can now trade his cage for the freedom of a harmless pot outlaw. Shamefully, there are usually no consequences. Those who snitch on pot people should be branded as traitors and banished from civilized society. In some parts of the world, thieves have their right hands cut off. This is not so much to remove their hand, but to impose a life sentence of ostracism, since in those societies, where bathing water is scarce, you eat with your right hand and wipe your ass with the other. The poor soul who has to eat with his left hand is forever doomed to eat alone.
What does this mean? It means that if you have enough brain cells to bang together to make a spark, you find someone dumber than you to carry the stuff across. It's just too risky for clever folks. But the nature of prohibition is clear: there's always someone dumb enough, or desperate enough, to take the risk. "Mule" is what the government calls them. True "mules" get a little sentencing break. Unfortunately, it is usually the mules that get busted, so, if that's you, read on. You were probably busted at random at the official border crossing, or out in the woods because someone followed your trail through the snow and then matched your boots to the prints, or because you tried to sneak over some suspicious farmer's property or creep by a remote sensor while carrying something on the first run. A dry run would have been a good idea. It's also nice if you don't stick out like a sore thumb sneaking across some remote border at two in the morning. If you were that smart you probably wouldn't have to be reading this part now. In the courts in Bellingham, Washington, they process about a half-dozen suckers like this each week. The same is true in Eastern Washington, and, as one customs officer told me, "from Maine to Blaine."
But if you haven't been busted yet, maybe you should know a bit about the American Criminal Justice System before you decide to be a mule.
The Consequences: The American Criminal Justice System - Compromised, Contaminated, and Corrupted.
It was, and in some places still is, one of the best and fairest on the planet. Recently, however, it has been compromised, contaminated, and corrupted by the war on drugs. Here's what it might look like if you become a customer of the criminal justice system.
If you are lucky enough to find yourself in the criminal justice system in state court, you aren't too bad off. You have probably not been greedy and were caught with a relatively small amount - less than 50 pounds, more or less. There are probably no records of you having made repeated border crossings. The state constitution and state due process of law still receive some respect. You may be okay. The trial process is reasonably fair, certain acts of government lawlessness actually result in the suppression of evidence, and for quantities small enough to keep you in state court, the penalties are consistent with the offense: For first offenders in Washington State, 0 to 90 days in jail, but with the potential for an "exceptional" sentence up to 5 years if you are really bad. Fines are usually high -- sometimes in excess of $5000. Most state judges properly view this as an economic crime and treat it as such. Big fines, not much jail. But it is a felony.
If you're a Canadian, that means you can't come back to the U.S. In the U.S. a felony is nearly an economic death sentence. You get most of your rights back, but discretionary niceties such as employment, insurance, or credit are often impaired. Boeing and Microsoft won't even consider you. Many countries won't let you in. So even at the state court level, it's not something to undertake lightly.
The Federal System:
If the United States Government should take an interest in you -- well, think about those kids in the car in Jurassic Park when the Tyrannosaurus Rex broke loose. When it comes to drug prohibition, the Federal Criminal Justice System is an insane, mindless, heartless, cruel, car-crushing, home-seizing, family-destroying monster out of control. The federal judges, some of them the most accomplished and dedicated lawyers in their communities, have been rendered toothless by a series of legislative and judicial decisions that have given the prosecution (the Crown) and the police everything on their wish lists for the last 30 years. By way of illustration of my seemingly outrageous claims, here's what the system looks like if you're a Canadian citizen, caught in the jaws of the Feds.
At a regular border crossing, it's pretty tame, though there are exceptions. But if you get caught out in the woods, look out! There's no one there to watch. You are at the mercy of the officers. Most of them are pretty civilized, so if you mind your manners, you probably won't be injured. But don't flunk the "attitude test."
At the moment of arrest, many rookies make panicked statements to try to make a desperate situation better. "Things will go better if you tell us what's going on." Yes, that's true. Things will go better for the cops, but not for you. There's just one simple but important thing to remember. "Just say 'no.'" Don't talk. Whatever you say will be re-written and enhanced until it suits the officers' needs. So shut up. Shut up. Shut up. You can say "oh shit," or, "excuse me, officer, do you have any toilet paper?" But that's about it. This is so important. When the police put words in your mouth, you have to confront them at trial. This means you have to take the stand, giving up your important right to remain silent, so that you can tell the jury, "I never said that!" Good luck.
After the officers are done interrogating you, when you reach the jail or detention center, you will be interviewed by a person from "pretrial services." Although these folks are not technically cops, only a precious few of them come from anything other than law-enforcement backgrounds. The rule here is simple: say nothing even to the pretrial services person until you and your lawyer have had the time to talk about it. Your lawyer will probably allow you to talk to the pretrial services interviewer, since they can be a great help in getting you out of custody.
Within a day or so of your arrest, you will find yourself in court, before a very polite United States Magistrate. Most of the U.S. Magistrates in my district are former prosecuting attorneys. (That's what we call "crown counsel" in the United States.) The Magistrate will tell you that you are entitled to a lawyer, a "detention hearing," and a "preliminary hearing." The government will put off your detention hearing for three days. But it really doesn't matter. If you're from Canada the odds are you won't get out. That's right. No bail, even for two-bit, non-violent, first-offense marijuana cases, even though you will be told that you are still "presumed innocent." Might as well presume the moon is made of green cheese.
Any cash you want to spend for bail is subject to a "Nebbia" hearing, at which you will be required to demonstrate with clear evidence that your cash is not the fruit of a crime. If you guess wrong, they may just take the money and keep it. The most effective bail in the federal system is the home of a relative who owns little else. The courts figure you won't leave your parents or your children without a home. But this is rare, even for American citizens charged with drug crimes in federal court. Most offenders charged in federal court start doing their time the day they are arrested. So you spend your pretrial time in some jail or detention center.
Here in Seattle we call the new place the "SeaTac Gulag." It's not because of the way they run the place, but because of what it's used for. It's well-run and really very civilized for a prison. You won't be raped or beaten there, and the staff seems quite good, even progressive, but you won't need your shades or your slicker. And they can be petty. Here's one example: One Canadian client of mine can't read without his reading glasses. They were taken from him when he was arrested. His wife went to the Marshall's office and got his glasses. She took them to the prison and delivered them to my client's prison counselor. The counselor refused to give them to him because he had not followed the proper procedures. He was in custody for five weeks before he could read the charges against him. (There was a form he was required to send to Canada, which, in turn had to be returned to the prison by his wife, in the same package as the glasses.) In other words, this is not a hotel you will like. Pettiness abounds.
The preliminary hearing is equally illusory. You get one unless the government has already indicted you by grand jury, which they usually will. Otherwise they actually have to give you a free feel at some of the evidence. Both the detention hearing and the preliminary hearing are your only chance short of trial to find out in any detail what the government thinks it has on you -- though what you get here is precious little. If your lawyer wants to waive either of these, s/he had better have a really good reason. (There are some reasons -- such as a plea offer that forecloses the government from probing into the 30 or so previous border crossings you made where you weren't caught.)
Before we get to the sentence, -- "'No, no!' said the Queen. 'Sentence first--verdict afterwards'" (1) -- let's talk about the trial process, something that is used so rarely that even the most active federal defense attorneys often try only two or three cases in a year. It's because of the trial process and all of the incredibly coercive powers the feds now have. (I thought we only gave them limited powers. Where the hell did all this come from?)
Prior to the actual trial, it used to be that some folks would get off on what many mistakenly refer to as "technicalities." As my mother used to say, "The Constitution is not a fucking technicality!!" Dismissal of a case on constitutional grounds is pretty rare these days. Think about the odds of finding a silver dollar rolling uphill against the wind. Those are your chances of throwing out evidence in federal court. Hitting an inside straight with three of your cards gone is a better shot.
Warrantless searches conducted anywhere but in the middle of a private residence always seem to find some justification. So don't expect to get off because the arresting officers used the Bill of Rights as toilet paper, or failed to advise you of your rights. If it helps to convict you, the evidence is probably coming in.
Then there's the trial process itself. We call it "trial by ambush" because the government has no duty to disclose its witnesses, much less to make them available for interview. In some jurisdictions the prosecutors, (in federal court, we call them United States Attorneys), will still give you a look at the evidence -- possibly because they have some basic sense of fairness. But where you're caught with the goods, this doesn't matter much. You know what the evidence is against you. If you're charged with conspiracy (from the Latin verb meaning "to breathe together"), you may have a good idea who the witnesses are against you. But what lies they may tell -- that often doesn't come out until shortly before the witness takes the stand to testify against you.
The government has all the advantages in federal court. Government witnesses are given huge sentence reductions, large cash payments, freedom for their loved ones -- even new identities and new lives. As recent journalism has revealed, the rush to "get on the bus" to give evidence against virtually anyone of interest to the government is a silent stampede. Every now and then a jury is offended that the testimony of a low life scum bag witness has been purchased by the government with the dearest of all currencies, but that's rare. Lies are still evidence, and in many cases, the only difference between a liar and a government witness is that one of them knows what s/he's doing.
Meanwhile, the defense attorney who tries to purchase testimony with any currency, much less that ultimate one, will be promptly suspended from practice. That's why most discussion among federal defense lawyers centers on sentencing issues and how to avoid the incredibly harsh results of the Sentencing Guidelines and the mandatory minimums.
Without boggling your mind with the technicalities of this Byzantine system, its main point is that the prosecutor determines the sentence by what crime is charged, after which the judge can only evaluate categories and rubber stamp predetermined sentences. Yet here is where most of the discussion goes on. Sadly, in many cases it's a discussion of whether the sentence should be a mandatory minimum 10 years, or the slightly lesser guideline sentence of 8-1/2.
Here are some specifics regarding marijuana sentencing under federal laws: At the state level, the laws change from state to state. Under federal laws, the standards are pretty extreme: 100 plants or 100 kilos = 5 years. 1000 plants or 1000 kilos = 10 years. There are a few exceptions, such as the "safety valve," an exception to the mandatory minimums that may be used by those with little or no criminal history, no leadership role in the offense, and no guns. One way to guarantee that you won't get any breaks in the criminal justice system is to possess a firearm. (For more details visit the chapter on sentencing at www.potbust.com)
The only good news is that after about a year or two in U.S. custody, most Canadian citizens can transfer to Canada where they serve only a third of their time. In the U.S., under federal law, they would serve 5/6 of their sentence. And don't look to the appellate courts for help. Defense victories are extremely rare: our appellate courts have abandoned their role as the protector of unpopular rights. For example, the U.S. Supreme Court has recently made such legendary rulings as the following: United States v. Ursery, 518 U.S. 267, (1996), ruling that when the government takes everything you own because you have committed a crime with it or to get it, you are not being punished. Herrera v. Collins 506 U.S. 390 (1993), actual innocence is not grounds to review a death sentence if the defendant already had a "fair trial." United States v. Watts, 519 U.S. 148 (1997), ruling that a defendant may be punished for conduct of which the jury acquits him.
Of course, there's a way out of this. You can cut your sentence at least in half by cooperating. This means providing the government with "substantial assistance" in the prosecution of another. You can trade your cage for someone else's. We call it a "5K" motion, after the section of the United States Sentencing Guidelines which creates it. But if you want to do that, don't read this, and don't call me.
But, no matter which path you choose, the first step is always the same: Shut up and call a lawyer. Neither admit nor deny anything without your defense attorney at your side. This is very difficult, but so important. Everybody seems to feel a need to explain themselves to the very same officers who have them at their mercy. If you don't start to babble, expect to be bullied, terrorized, lied to and manipulated. That's what drug officers are trained to do. Unless s/he is a true professional -- and there are quite a few of them out there -- in order to succeed as a narcotics officer, s/he has to be good at coercion.
In Singapore, they have a provision for the right to counsel that is much more straight-forward: You have the right to counsel if counsel would not impede the investigation. But, until you confess, counsel will impede the investigation. We have a similar system here, but it's not set out quite so clearly.
If your friends or family live in the U.S., they should expect a certain amount of bullying as part of the initial rush. Your house may be searched. Your mom's house may be searched. Your bank accounts will be frozen. Your home, your car, your boat, and maybe even your lawn mower and your socks and underwear will be seized. One client even had his collection of baseball caps stolen by the cops. Be ready to deal with this emotionally without turning into a blubbering fool. The entire system is designed with one goal in mind: to wring the most terrible testimony from defendants -- testimony that destroys their friends and family. If you weren't ready for this kind of pressure, you've got no business in today's drug business. In any event, there are many pressures in the first few hours of your arrest -- all directed at getting you to become an informer, or at least to make the cops' job easier. They hold out the prospect of bail, freedom for you or your loved ones, and they threaten with the loss of everything -- even your children.
The sooner you call a lawyer, the sooner this torture stops. Your lawyer should know how to act swiftly to legally protect you and your friends and family from bullying, and your assets from seizure or theft. In some cases it is necessary to freeze the evidence before the government can massage it or destroy it.
Even if you want to cooperate, at the moment of the bust, you must be strong. Whether you intend to cooperate and inform, or to fight it out, you must have a lawyer immediately to begin either course. Don't play any cards until you've had a lawyer advise you. The police have heard it all a thousand times. They believe none of it. But they'll still milk you. They are trained to get you to help them through lies, trickery, false friendship -- nothing is beneath them. So get a lawyer. Immediately.
This is not just some lawyer's self-serving crap. Ask anyone who's been arrested. In too many cases, until your lawyer shows up, you are a victim to be bullied; a target to be threatened; a source to be exploited.
How to find a lawyer
If you've crossed the border without researching this one, you really are lame. Sorry for the insult, but, what were you thinking? You shouldn't have undertaken this mission without a phone number of a lawyer you have researched and believe to be qualified. Although wise lawyers will not take "retainers" from persons not actually in need of representation, most will talk to you and tell you what their fee would be if you're actually in need, and what terms they will accept. It costs you nothing to put that lawyer's card in your wallet or purse.
You should also know that any United States lawyer (or any person in the United States, for that matter) who takes more than $10,000 in cash for any one case in any one year must file a "currency transaction report" with the IRS. This is not a problem if you are paying the bill from assets or credit for which you can account. I mean account -- not just some jive story that the cops have heard a hundred times. "I never used banks." "I kept it in a can." So on. If you plan on having a friend show up with a suitcase full of cash that you can't explain, you will probably have to content yourself with lawyers who aren't smart enough to keep themselves out of trouble. In any event, it doesn't matter. If you're that dumb, you're probably too broke to afford a lawyer anyway. $25,000 is not an unusual retainer for those lawyers who are familiar with the federal criminal justice system. At the state level you might get by for $5,000 if you just want to plead guilty.
But it's okay if you can't afford private counsel. The often abused Public Defenders are among the very best lawyers anywhere. Their standards are high; their training is excellent. The sometimes higher-paid members of the "private bar" often call on them for advice. So that's a good place to start. You have to judge lawyers, their abilities, and, perhaps more importantly, their interest in you and your marijuana case for yourself. Be neither shy nor confrontational when interviewing a lawyer. Just be clear about what you want to know. You need a lawyer because you have made a serious mistake. Don't make another by choosing hastily or foolishly. Of course, when it comes to public defenders, you rarely get to choose a second one. This means you have to make contact and communicate your needs. You have to let your assigned lawyer know you have confidence in him or her, but that you wish to take part in the decision-making process.
If you'd prefer retained counsel, some of whom have a bit more time to hold your hand, make sure you select one who knows the system, be it federal or state, and who understands how marijuana cases are different from any other criminal defense. Their state-by-state list  of lawyers is a very good place to start. Or you can call the Washington D.C. office at (202) 583-2200. If they do you a favor, send them a contribution.
Another good place to look is former public defenders that have just set out in private practice. They are usually well-trained and motivated. But you may have to explain to them why it is that marijuana cases are different than all others.
Pot bust victims should approach with great suspicion any defense attorneys who advertise themselves out as "former prosecuting attorneys." Among them are some very fine lawyers who will go to the wall for their pot clients. But if they quickly tell you to plead guilty and snitch, get a second opinion -- preferably from a career defense attorney.
Picking lawyers in this world where the government has stacked the deck is difficult. An honest lawyer will tell you frankly what s/he can do for you - and what s/he can't!! A naive or dishonest lawyer will hold out false hope to you until s/he is retained. You usually will not like what the honest lawyer tells you. If you're caught by the feds you're in big trouble. The punishments are extreme and the defenses few. The little discrepancies in the government's story are usually useless as a defense. The outrageous conduct of the government is usually not enough to even get a toe in the door. So you have to avoid being seduced by false hope. You must choose your lawyer carefully. Does s/he understand pot laws? Is s/he ready to explore the facts before telling you to race to the courthouse to cooperate or plead guilty? Does s/he have any experience in pot cases, as opposed to general criminal defense?
Even the best lawyer can't improve much on the rest of the program. If you're caught "red-handed" and the search is good, often the only significant remaining question is the sentence. Yes, it is possible to go before a jury and hope that somehow that one juror who will not convict for marijuana will sneak on to the jury. The trouble is that people like that are usually honest. The prosecutor kicks them off the jury as soon as they show their true colors. It's the ones who are there to hang you who aren't shy about concealing their motives behind the generic recitation "I can be fair." It's not like Canada, where, I understand, acquittals of clearly guilty pot people are fairly commonplace. Here in the land of the free and the home of the brave it doesn't happen.
In most cases, the price of going to trial is very high. A plea offer of 24 months can quickly turn into five or ten years if you go to trial and fail. So don't get your hopes set on winning at trial because your cause is just or you are just a virgin who made a mistake.
The United States government has become obsessed with marijuana. In the wake of the September 11 tragedy it has become clear that our law enforcement establishment has been allowed to appear busy stomping on ants, while rhinos come over the walls. If you don't live in the United States, you probably can't imagine the insane cruelty and misallocation of resources involved in the war on marijuana and the people who use and distribute it. Nor can you imagine the Alice in Wonderland quality of some of our criminal laws and procedures. When drugs are involved, reason and civility flee from the justice system. So don't think for a minute that because the drug war is fatally flawed, because there is nothing wrong with the responsible adult use of marijuana, because our Canadian neighbors have gone well down the path of intelligent tolerance, because the American public has voted overwhelmingly to make marijuana a medicine, that it's safe to bring this magnificent herb into the United States. Unless you are ready to do some serious prison time in a system that thinks weight rooms are a luxury too good for prisoners, just don't do it. With thanks to my law partner, Alison C. Holcomb, for editorial assistance.
(1) Alice's Adventures In Wonderland, Lewis Carroll.