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InvisibleLanaM
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Drug Law FAQ: A Guide to the Fourth Ammendment
    #641179 - 05/23/02 04:00 AM (16 years, 8 days ago)

Another "made for marijauna" movie! But applicable to the local mushroom cultivator.

---------------------------------------------------------------
Drug War Follies:
Common Mistakes Made in the War on Drugs:
A Guide to the Fourth Ammendment

Ive edited out the parts that apply only to Florida, however I am not a lawyer I am an activist, so if anyone that is reads over this and finds any discrepencies please let me know and Ill edit them to reflect Federal law, however my hope is that the information contained within will keep other US Overgrowers safe until we can get the laws to change

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?The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.? The Fourth Amendment to the Constitution of the United States

Over the years the courts have interpreted the protections and privacy afforded to individuals and their property balancing them with governmental interest. Agents of the government are often briefed on the latest court interpretation of the fourth Amendment are supposed to follow certain procedures before conducting a search of your property or your person. Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court and that acceptance controlled decisions in numerous cases. For example, in Olmstead v. United States, one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant's premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to Fourth Amendment restrictions. The Court later rejected this approach, however

Each search of a vehicle, private property or person is fact specific. Whether a search by the government will be deemed lawful depends a lot on how you acted leading up to and during your encounter with law enforcement. This booklet will offer suggestions on how citizens can best protect themselves against unreasonable search and seizure.

What should I do if a police officer pulls me over?

Remain as calm as possible, pull over to the side of the road as quickly and safely as you can. Make yourself visible; do nothing that can be mistaken for a dangerous move. Don?t reach for a purse or backpack or open the glove box unless you?ve asked the officer?s permission, your driver?s license, registration and proof of insurance should be within arms reach at all times. An officer?s first priority is his or her own safety; any suspicious move on your part can cause a simple stop to quickly escalate.

When the officer approaches your window, you may want to ask (with all the politeness you can muster) why you were stopped. If you are concerned that the person who stopped you is not actually a police officer (for example, if the car that pulled you over is unmarked), you may ask to see the officer?s photo identification along with his/her badge. If you are ordered or choose to step outside of your vehicle make sure you first put your keys and license in your pocket, then lock your car. A locked vehicle offers you protection against a search. If the officer wants to conduct a search against consent they are forced to physically remove your keys from your pocket or break into your car. This clearly will show this was a non-consensual search.

If the police pull me over, when can they search my car?

If an officer reasonably suspects criminal activity or if he/she fears for his/her safety they may conduct various levels of searches. A police officer on reasonable suspicion that the subject may pose a threat, may frisk a subject, but safety is the reason for the frisk, and 'it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

If the officer has reason to think that you pose a danger to his or her safety, they may search you and the immediate area for weapons around you. Once police have validly stopped a vehicle, they may also, based on articulable facts warranting a reasonable belief that weapons may be present, conduct a Terry-type protective search of those portions of the passenger compartment in which a weapon could be placed or hidden. And, in the absence of such reasonable suspicion as to weapons, police may seize contraband and suspicious items ''in plain view'' inside the passenger compartment.

It is not lawful for the police in undertaking a warrantless search of an automobile to extend the search to the passengers therein. But because passengers in an automobile have no reasonable expectation of privacy in the interior area of the car, a warrantless search of the glove compartment and the spaces under the seats, which turned up evidence implicating the passengers, invaded no Fourth Amendment interest of the passengers.

Luggage and other closed containers found in automobiles may also be subjected to warrantless searches based on probable cause, the same rule now applying whether the police have probable cause to search only the containers or whether they have probable cause to search the automobile for something capable of being held in the container.

If my car is towed and impounded, can the police search it?

Yes. If your car is impounded the police are allowed to conduct a thorough search. Which may include its trunk and any closed containers that they find inside. This is true even if your car was towed being illegally parked or if the police recover your car after it was stolen.

The police are required, however, to follow fair and standardized procedures when they search your car. Court have ruled they may not stop you and impound your car simply to perform a search.

I was pulled over at a roadblock, asked to wait and answer a police officer?s questions. Is this legal?

Yes, Courts have determined roadblocks may be used as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car). Police must make reasonable efforts to minimize any inconvenience to you and other drivers during roadblock stops. The police can?t single out your car at a roadblock unless they have good reason to believe that you?ve broken the law.

The two-part test that Justice Harlan suggested in Katz has purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of privacy flows from ownership concepts. On the other hand, many other cases have presented close questions that have sharply divided the Court. The first element, the ''subjective expectation'' of privacy, has largely dwindled as a viable standard, because, as Justice Harlan noted in a subsequent case, ''our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.'' As for the second element, whether one has a ''legitimate'' expectation of privacy that society finds ''reasonable'' to recognize, the Court has said that ''[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'' Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others; but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection. That a person has taken normal precautions to maintain his privacy, that is, precautions customarily taken by those seeking to exclude others, is usually a significant factor in determining legitimacy of expectation. Some expectations, the Court has held, are simply not those which society is prepared to accept. While perhaps not clearly expressed in the opinions, what seems to have emerged is a balancing standard, which requires ''an assessing of the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement.'' As the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary.

Plain View

Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for seizing contraband and/or getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.

Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.

What is a search warrant?

A search warrant is a kind of permission slip, signed by a judge that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.

As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search -and why a warrant wasn't obtained first- if the defendant challenges the search in court.

What does it take to get a search warrant?

A judge will issue a search warrant after the police have convinced him or her that:

? It is more likely than not that a crime has taken place, and
? Items connected to the crime are likely to be found in a specified location on the property.

To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant. The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a, certain location would be corroborated if an officer observes the person's routine. Corroboration is not necessary in every case. A judge may issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.

What are the police allowed to do after they obtain a search warrant?

Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. A legal search is to be confined to the specific areas described in the warrant. For example, if the search warrant includes only' the living room, the search should not extend into the kitchen, bathroom or bedroom. There are exceptions to this limitation that are frequently used to justify broader searches For example; the police may search beyond the terms of the warrant in order to:

? Ensure their safety and the safety of others.
? Prevent the destruction of evidence.
? Discover more about possible evidence or contraband that is in plain view elsewhere on the property.
? Hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.

For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. The police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.

Do the police always need a warrant to conduct a search?

No. In many situations, police may legally conduct a search without first obtaining a warrant.

? Consent searches . If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
? Searches that accompany an arrest . When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. This is called an inventory search. Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
? Searches necessary to protect the safety of the public . The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. In the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
? Searches necessary to prevent the imminent destruction of evidence . A police officer does not need to obtain a warrant if he or she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana- growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
? "Hot pursuit" searches . Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.

Can my roommate-or my landlord-give the police permission to search my apartment?

The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.

Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. Keep in mind that many states allow a landlord to enter for inspections, usually requiring advance notice of a day or two. If the police can point to circumstances that would justify immediate entry, however, such as the sound of a ferocious fight or the smell of burning marijuana, they may enter without permission from anyone.

Police didn't read me my Miranda Warning, can what I say be used against me?

Yes, anything you say during an investigation by law enforcement can be used against you either as evidence at trial or to impeach your testimony on the witness stand. Police do not have to read you Miranda Warnings until they place you under arrest. Police need only provide you with a Miranda Warning if they intend to question you regarding the crime you are accused of committing. Police are noting your mannerisms, conversation and tone. They will document these things in police reports and general notes. These things will be used against you during plea-bargaining or later at trial. Protect yourself by retaining your right to remain silent .

How safe are my phones and computers?

Federal Law : The Electronic Communications Privacy Act (ECPA) of 1986 was adopted to address the legal privacy issues that were evolving with the growing use of computers and other new innovations in electronic communications. The ECPA updated legislation passed in 1968 that had been designed to clarify what constitutes invasion of privacy when electronic surveillance is involved. The ECPA extended privacy protection outlined in the earlier legislation to apply to radio paging devices, electronic mail, cellular telephones, private communication carriers, and computer transmissions.

Note This Federal Law sets out the standards for when and how the government may monitor your electronic communications. Since 9/11 and at the time of writing legislation is being passed to expand the government's ability to monitor whom we talk to and what we say. Protect yourself; land phone lines have a greater expectation of privacy than cell phones. Never say anything on the phone that you wouldn't want repeated to a Judge. :

What authority does Postal Inspectors have under the law?

"As sworn federal law enforcement agents. Postal Inspectors have the power to serve warrants and subpoenas issued under the authority of the United States; make arrests without warrant for postal-related offenses committed in their presence; make arrests without warrants for postal-related felonies cognizable under the laws of the United States, if they have reasonable grounds to believe that the person arrested has committed or is committing such a felony; carry firearms, and make seizures of property as provided by law." US Postal Web site.

Can Postal Inspectors open mail if they feel it may contain something illegal?

First-Class letters and parcels are protected against search and seizure under the Fourth Amendment to the Constitution, and, as such, cannot be opened without a search warrant. If there is probable cause to believe the contents of a First-Class letter or parcel violate federal law, Postal Inspectors can obtain a search warrant to open the mail piece. Other classes of mail do not contain private correspondence, and therefore may be opened without a warrant.

In 2001 Postal Inspector investigations into illegal narcotics mailings resulted in the arrest of 1,662 individuals and the seizure of more than 8.000 pounds of illegal drugs and more than 288,000 units of steroids, plus more than S3.5 million in cash and monetary instruments, 20 vehicles and 64 firearms.

Note: These rules apply to the U.S. Postal Service, private mail carriers such as UPS or Fed X have no such privacy guarantees.

When must I consent to take a drug test?

Urine testing can be required as a condition of probation or pre-trial release. For employment, urine tests can be required if you decide to work for a company that mandates testing.

No Government agency can force you to take a drug test without a court order. Department of Children and Family Investigators have repeatedly violated procedure in Florida and have coerced people into submitting to urine tests.

How accurate are drug tests?

There are several scientific methods of urine testing. You should educate yourself on the type of Forensic Science being used if you are tested. The error rate and accuracy of the results vary depending on the science and procedures used by the lab. There are approximately 60 Federally certified labs in the U.S. There labs are very accurate and also expensive so most companies and government agencies work with labs that are not Federally certified and less accurate.


Key Legal Terms

Probable Cause
Probable cause is a requisite element of a valid search and seizure or and arrest. The issue of whether probable cause exists must be determined on the basis of independent judgment of a detached magistrate. Probable cause must be based on affidavits in support of a request for a search warrant. If police conduct a warrantless search, the issue of probable cause may be determined later by a judge at a motion to suppress the evidence. Probable cause can be established in many ways. 380 U.S.102, 111 determines the rules applied to using cumulative knowledge of the investigating officers as probable cause.

Reasonable Belief or Suspicion
Similar to the probable cause standard in criminal law, reasonable belief has a subjective standard used to validate a warrantless search, seizure or arrest. It considers whether an officer acted on personal knowledge of facts and circumstances that are reasonable and trustworthy or that would justify a person of average caution to believe a crime has been or is being committed.

Note : Usually in the absence of plain view two facts have to be apparent to establish probable cause or reasonable belief. From FL CAN'S in courtroom experience here are some of the most common things police officers testify to in order to establish probable cause:

? Nervousness of defendant
? Conflicting stories of driver and passengers
? Smell of marijuana or alcohol
? A furtive or sudden movement of the defendant
Although they won't admit it police also use race and appearance in determining probable cause.

Constructive Possession
"The condition of having the conscious power and intention to exercise dominion and control over property but without direct control of or actual presence of it."
For example, if your roommate's marijuana was stored in an obvious common area of your apartment i.e. in the fridge or on the living room table you could easily be guilty of constructive possession even if the roommate admitted it was theirs. If the marijuana were found in your roommates private bedroom or study or another non-shared area of the property it would be difficult for the government to prove constructive possession.

Terry Stop
A Terry Stop refers to the right of Police to stop and detain an individual on the street for questioning, then to perform a frisk and pat down for weapons. In most cases the individual has the right to refuse to answer any questions; however, if the police believe you are loitering they can demand that you explain your presence in the area and ask you to identify yourself. Running from the police is considered by the Supreme Court to give police the right to pursue and then search you. If you don't want to talk to police you see headed your way, stay put and tell them you don't want to talk to them. Don't be too surprised if you're harassed or searched anyway if you happen to fit a profile. If you run away for whatever reason you are providing them with all the justification they need to chase, stop and frisk. Under Terry police must demonstrate Reasonable Suspicion for stopping you in the first place and Probable Cause to detain, search, or arrest you.

Helpful cases
U.S. Supreme Court
TERRY v. OHIO, 392 U.S. 1 (1968)
392 U.S. 1
No.67.
Argued December 12, 1967
Decided June 10,1968

U.S. Supreme Court (Illinois v. Wardlow, January 12th 2000)

FLORIDA v. J. L.
certiorari to the supreme court of Florida
No. 98-1993. Argued February 29, 2000-Decided March 28, 2000

Note: The FL case ruled in favor of the citizen and illustrates when police may not stop and search a person.

Fruit of the Poisonous Tree Doctrine
Under this rule, evidence that is the direct result or immediate product of illegal conduct on the part of an official is inadmissible in a criminal trial against the victim of the conduct (or other person with standing under the due process clause of the Fourteenth Amendment. See 371 U.S. 471). Examples of poisonous fruit would be a coerced confession and any evidence obtained as a result of that confession, evidence seized f without a warrant or probable cause.

Note: It is difficult for passengers in a vehicle or a casual visitor in a home to establish standing to suppress evidence being used against them. Beware evidence that is obtained by private citizens not acting as agents for the state may be used against you.

-------------

if you have any trouble with any of the ideas presented here, or if your a lawyer who happens to know that a part of this applies differently in a state other than Florida please email me at alvin@flcan.org

Al Mites
webmaster, http://www.floridacannabisaction.net


--------------------------------------------------------------------

Enjoy!
Lana


--------------------
Myco Supply - Distributors of Mycological Products
http://www.MycoSupply.com

The Premiere Source for Mushroom Growing Supplies.
Visit us online or call us toll free


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OfflineAbudiwa
CompleteApparition.
Male

Registered: 08/17/01
Posts: 5,530
Loc: here and there...
Last seen: 5 years, 4 months
Re: Drug Law FAQ: A Guide to the Fourth Ammendment [Re: Lana]
    #641944 - 05/23/02 03:42 PM (16 years, 8 days ago)

yahoo i can be the first to commend you.

lana, you are fantastic.

that was very interesting.


--------------------
*user out of date*

the only pms pants gets:
<pants> "WTF UR PIKTUR IS SO STIPID WTF FUCK U"


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InvisibleLanaM
Head Banana
Female

Registered: 10/28/99
Posts: 3,106
Loc: www.MycoSupply.com
Re: Drug Law FAQ: A Guide to the Fourth Ammendment [Re: Abudiwa]
    #642258 - 05/23/02 07:37 PM (16 years, 7 days ago)

Hi Abudiwa,
I am glad you enjoyed it

Sometimes I feel like I post things and no one reads them! ??

No worries, just as long as I know that at least ONE person has gained something I'm happy.

The advice is pretty "common sense" kind of stuff, but its still nice to have it put into a prospective format for ya!

Lana


--------------------
Myco Supply - Distributors of Mycological Products
http://www.MycoSupply.com

The Premiere Source for Mushroom Growing Supplies.
Visit us online or call us toll free


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OfflineAbudiwa
CompleteApparition.
Male

Registered: 08/17/01
Posts: 5,530
Loc: here and there...
Last seen: 5 years, 4 months
Re: Drug Law FAQ: A Guide to the Fourth Ammendment [Re: Lana]
    #642393 - 05/23/02 09:18 PM (16 years, 7 days ago)



--------------------
*user out of date*

the only pms pants gets:
<pants> "WTF UR PIKTUR IS SO STIPID WTF FUCK U"


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Invisiblephrozendata
Carpal Tunnel

Folding@home Statistics
Registered: 04/24/00
Posts: 5,015
Re: Drug Law FAQ: A Guide to the Fourth Ammendment [Re: Abudiwa]
    #644068 - 05/24/02 10:26 PM (16 years, 6 days ago)

thats great...
...i'm sure a lot more people have seen this than me and Abud...


--------------------
"There's only one corner of the universe you can be certain of improving and that's your own self. So you have to begin there, not
outside, not on other people" - Aldous Huxley


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InvisibleAlien
Galactic Shaman

Registered: 11/14/99
Posts: 1,853
Loc: Jupiter's Moon
Post deleted by Administrator [Re: Lana]
    #644281 - 05/25/02 05:07 AM (16 years, 6 days ago)



--------------------
-Alien :cool:

Alien Substrate Instructional:  http://www.youtube.com/watch?v=KG82xLzrNg8


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InvisibleLanaM
Head Banana
Female

Registered: 10/28/99
Posts: 3,106
Loc: www.MycoSupply.com
Re: Drug Law FAQ: A Guide to the Fourth Ammendment [Re: Alien]
    #648967 - 05/28/02 05:32 AM (16 years, 3 days ago)

Me overlook you??? Never

The law is suppose to be black and white...but its not.

I agree that your friend would be in the right. But the law/cops are just as shady as drug dealers in my opinion

If the cabinet is out of sight, or if the contents inside of the cabinet are out of sight then the cops need a probable reason to open it. A probable reason can be that they THOUGHT they say smoke coming from the cabinet.

They THOUGHT they heard a suspicious bomb-like ticking noice inside of it.

Far fetched but, not uncommon. I knew a guy who owned a bar. One night the cops raided his bar. The cops took all of his booze and money. They went back into his office and they told him to open his safe.

Now my friend knowing that the second that he opens that safe, anything inside of it will be confiscated and prbably "lost" within the judicial system.

So, my friend told the cops that he wouldn't open it. They said "he had to". He then told them to fuck off and that they would have to get a locksmith to open it becasue he wasn't about to tell some pig cop the combination to his safe

Well, the cops ended up bringing in a forklift the next day to take his safe. The safe was 6' high and almost 2,000 pounds. They took the safe, burned off the lock and found nothing inside of it.

My friend counter sued for the value of the safe (which was an antique)

Point of the story, even though there was nothing in the safe, the cops will still find some bullshit reason to bust your balls

Lana


--------------------
Myco Supply - Distributors of Mycological Products
http://www.MycoSupply.com

The Premiere Source for Mushroom Growing Supplies.
Visit us online or call us toll free


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InvisibleAlien
Galactic Shaman

Registered: 11/14/99
Posts: 1,853
Loc: Jupiter's Moon
Post deleted by Administrator [Re: Lana]
    #649657 - 05/28/02 02:09 PM (16 years, 3 days ago)



--------------------
-Alien :cool:

Alien Substrate Instructional:  http://www.youtube.com/watch?v=KG82xLzrNg8


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InvisibleGabbaDj
BTH
 User Gallery

Registered: 04/08/01
Posts: 19,513
Loc: By The Lake
Re: Drug Law FAQ: A Guide to the Fourth Ammendment [Re: Alien]
    #650176 - 05/28/02 09:02 PM (16 years, 2 days ago)

Gret post... Some great reading on this are:
Marijuana The Law and You.
Ask me no questions, Ill tell you no lies by Jack Luger.
Criminal Justice, New technologies and the constitution. By Our US Congress.
Sacred Mushrooms and the Law, $3 20 page paperback FULL of information..


--------------------
GabbaDj

FAMM.ORG          C8.com                    http://www.beatsopjefiets.com/   


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