By Maureen O’Hagan mohagan@wweek.com
mlz1@aol.com

"SNIFF AND GRAB"

Context:

The Washington State Supreme Court recently ruled that it’s illegal for police to gather information on an individual’s electric usage without a warrant. (Ed. note: This is very important, but it is still relatively easy for the police to get warrants.)

Knock and talk is used mostly for marijuana investigations, but similar techniques are used in other cases. For example, officers routinely stop people on the street and, if they look suspicious, sometimes ask for consent to search them. (Ed. note: Repeat after me: "No, I do not consent to a search." Be polite, but insist on your rights. If they insist on searching, do not resist, but make clear they are proceeding without your consent. And no, I am not a lawyer. So ask one, but they will tell you the same thing.)

According to the Drugs and Vice Division’s 1996 Annual Report, "That marijuana production is being conducted by such a cross section of supposedly respectable citizens is an indication that marijuana enforcement has been too long neglected." (Ed. note: or that the laws should be changed. Or that the marijuana laws therefore give the police the basis to suspect anyone. You look like a marijuana grower, because it could be anyone.)

SNIFF and GRAB

Tactics used by the police bureau’s Marijuana Task Force frustrate local defense lawyers.

For a six-person team that is responsible for more drug investigations than any other unit in the Portland Police Bureau, the Marijuana Task Force hasn’t received much public attention. Until now. Since Steven Dons allegedly shot two members of the task force and killed another officer during a marijuana investigation late last month, the tiny unit has come under increased scrutiny.

Defense lawyers say it’s about time.

"I’ve been on the case of the Marijuana Task Force for three years now," says Jenny Cooke, a Portland defense lawyer. "I feel like I’ve been howling in the wilderness."

Cooke and others acknowledge that by criticizing the task force, they’re putting themselves in a tough spot. They don’t want to appear callous to the death of a Portland cop, but they’re also eager to publicize what they see as real problems with the bureau’s efforts to target marijuana growers.

The task force is able to seize so much pot because each investigation is relatively simple. First, the cops develop a suspicion someone is growing marijuana. Sometimes they get the information from a neighbor or from a drug suspect who wants to turn over evidence to reduce his own charges. Other times, they’re more clever. According to defense lawyers who have questioned task force members, the police have staked out American Agriculture, a store that sells high-tech growing equipment that police suspect is not intended for raising broccoli in your basement. The task force then gets the address of the buyer either by following him home or tracking his license plate number.

Next, the cops check with PGE to see if the home has unusual electric bills. Defense lawyers claim that their clients lose no matter what the police find.

"If you have high power usage, they use that as evidence of a marijuana grow," Cooke says. "If you have low power usage, it means you’re stealing electricity, and that’s evidence of a marijuana grow."

Armed with little more than a suspicion, task force members then stop by the house. If the person isn’t home, they sometimes look around for evidence. Courts have ruled that in some circumstances, the police can walk into a backyard as long as it’s not fenced in and may also peer in windows. If the person is home, they conduct a "knock and talk." In this technique, officers simply knock on the door and ask if they can come in and look around.

That was the plan in the Dons case. The only problem was, he allegedly began destroying the evidence, which gave police enough cause to break down the door and enter the home without a warrant.

Don’s actions, however, were highly unusual. Typically the suspect allows officers to enter his home—even if he has pot plants growing in his basement.

Judges nationwide have upheld the knock-and-talk technique; its defenders say cops have as much right to ring your doorbell as cookie-toting Girls Scouts. Defense lawyers say it’s inherently coercive, noting that Girl Scouts aren’t usually wearing a badge or carrying a gun.

Police visits "can be very intimidating without being illegal," says defense lawyer Lisa Maxfield, noting that most people don’t know that they can slam the door in the cops’ faces. Some of Maxfield’s clients describe a procedure which more accurately could be described as a "walk and talk."

"They’ll be walking through the door at the same time as they’re saying, ‘May we come in?’" she says. "They come in with their badges flashing. It’s not really consent."

When the suspect doesn’t give consent to enter the home, the police try to sway them by explaining that they’ll simply apply for a warrant instead, implying that this will make things more difficult for both the police and the suspect. Their language can be very nuanced, according to Deputy District Attorney Mark McDonnell. For example, the difference between a cop saying "I’m going to get a search warrant" and "I’m going to apply for a search warrant" can make or break a case, because the former is considered unlawful coercion.

"The police are very specific in what they say and are very careful," says McDonnell, who heads the drug unit. "If it’s coercive, it’s illegal. But there are times when people interpret what police are saying as a threat."

Even if task force members aren’t able to persuade suspects to let them in, they can use the knock and talk to their benefit—by using their nose. Unlike most other drugs, marijuana has a strong smell. Oftentimes, officers say they get a whiff of growing marijuana when the suspect opens the door—a claim many defense lawyers question. "Any defense attorney in this town will tell you these guys can smell dope in places no other man can smell dope," says defense lawyer Michelle Burrows.

That smell is important. First, the odor gives officers enough evidence to make an arrest without a warrant—as long as the person is outside his or her house.

According to defense lawyer Bruce Howlett, the cops have developed tricky tactics to get suspects out the door, like offering business cards. When the suspect reaches out to take the card, the officer can grab his arm, yank him out the door and place him under arrest. "That’s what I call the ‘sniff and grab’ technique," says Howlett.

Even if the suspect doesn’t leave his house, the odor of growing marijuana helps officers make their bust anyway. In most cases, the smell alone is enough for a judge to issue a search warrant, which allows police to enter a home without consent. This is particularly galling to defense lawyers.

"Most of the time, there’s no way to contest this sniff stuff," says defense lawyer Maxfield. "Unless you can prove this officer is a big fat liar, there’s not a court in the state that’s going to say this officer is lying. We get frustrated that there’s not a way to test someone’s factual assertion."

In some cases, however, defense lawyers have persuaded judges to rule in their favor. Once, for example, Maxfield was able to prove that the marijuana that police smelled didn’t come from her clients’ house but from the clothes of officers who dismantled another grow earlier that day. The charges were dismissed.

But most of the time, the marijuana defendant winds up losing. In some ways, the police end up losing some public support, as well.

Defense lawyers frequently argue that police tactics are unfair. When those tactics are applied in investigating child molesters, gun runners and robbers, the claims don’t get much sympathy. With the Marijuana Task Force, they have a bit more resonance because the cops are going after pot growers, whom most people perceive as harmless.

"The controversy here is that a large segment of the population is very ambivalent about marijuana in general," says McDonnell. "The problem is: