Green Kratom LeafThe federal Controlled Substances Act (CSA), 18 U.S.C. § 801 et seq., establishes five schedules of chemicals and materials, setting restrictions on their manufacturing, distribution, sale, and possession. Schedule I contains the most highly restricted drugs. The Drug Enforcement Administration (DEA), part of the U.S. Department of Justice (DOJ), has the authority to add drugs to the schedules, remove them, or reschedule them. In August 2016, the DEA published a notice of intent to add two chemicals, the active components of a plant known as kratom, to Schedule I. 81 Fed. Reg. 59929 (Aug. 31, 2016). The DEA claimed that banning kratom “is necessary to avoid an imminent hazard to the public safety.” Id. The notice prompted a massive public response about the purported benefits of kratom. The DEA withdrew its notice of intent about six weeks later and requested additional feedback. 81 Fed. Reg. 70652 (Oct. 13, 2016).

Schedule I controlled substances, according to the CSA, have a “high potential for abuse,” lack a “currently accepted medical use,” and have no “accepted safety” standards for use “under medical supervision.” 21 U.S.C. § 812(b)(1). The CSA includes various opioids and opiate derivatives, including heroin, under Schedule I, as well as MDMA, marijuana, LSD, peyote, and psilocybin. Id. at § 812(c)(I). The DOJ, through the Attorney General, has the authority to add drugs to any of the schedules upon a finding that they have “a potential for abuse” and fit the CSA’s scheduling criteria. Id. at § 811(a). The DOJ has delegated this procedure to the DEA. 21 C.F.R. § 1308.01 et seq.

Kratom is native to Southeast Asia. It is reportedly used in pain management and to treat opiate withdrawal, although the Food and Drug Administration (FDA) has not approved it for any medical use. Since it has similar effects to opioids, it is also used recreationally. According to the Centers for Disease Control and Prevention (CDC), kratom use has been associated with various negative effects. Kratom proponents claim that it is a beneficial alternative to opioid drugs. Six states—Alabama, Arkansas, Indiana, Tennessee, Vermont, and Wisconsin—have banned kratom, along with one county in Florida. The FDA has issued an import alert regarding the plant, and the federal government has seized multiple shipments of dietary supplements containing kratom at U.S. ports.

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Starry NightIn a criminal prosecution, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. Defendants may be able to raise certain defenses under either statutes or the common law. An affirmative defense that receives a great deal of attention in pop culture but is not often well understood is the “insanity defense.” The legal standard for this defense varies greatly from state to state. A recent state supreme court ruling limited the availability of the insanity defense when a defendant does not voluntarily agree to its assertion at trial. New Jersey v. Gorthy, 145 A.3d 146 (N.J. 2016).

A defendant who raises the insanity defense is effectively admitting to the actions that constitute the alleged offense but arguing that they should not be held criminally responsible. Under Texas law, the insanity defense requires a defendant to provide evidence of a “mental disease or defect” that rendered them incapable of “know[ing] that [their] conduct was wrong. Tex. Pen. Code § 8.01. This focus on a defendant’s understanding of “right” and “wrong” is often known as the M’Naghten Rule, after an 1843 English court decision. The Texas Court of Criminal Appeals has summarized this rule as requiring proof of an “extreme delusional state[] that caused [the defendant] to misperceive the very nature of their acts,” or a “belie[f] that in acting, they were obeying rather than violating the laws of society.” Rubio v. State, 241 S.W.3d 1, 13 (Tex. Crim. App. 2007).

One criticism of the M’Naghten Rule, as applied in Texas, is that it fails to provide clarity “about whether ‘wrong’ should be considered from a legal or a moral standpoint.” Id. at 14. The consensus appears to be that the rule looks at “wrong” from a legal standpoint. The Rubio decision mentions the case of Andrea Yates, a woman who killed her children out of a belief that it was necessary to “drive out the devil.” Id. Under Texas law, she was found not to be insane because she understood her actions to be illegal, if not immoral. Id., see also People v Schmidt, 216 N.Y. 324 (1915).

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oil rigThe term “white-collar crime” encompasses a wide range of activities that generally involve the use of fraud or misrepresentation, rather than actual or threatened violence. One well-known example of white-collar crime, insider trading, involves the use of non-public or confidential information to gain an advantage in a financial market. “Insider trading” is not a distinct criminal offense under federal law but instead a term used to describe certain types of fraudulent or unfair financial practices. People generally associate insider trading with securities markets and exchanges. A recent case brought by the U.S. Commodity Futures Trading Commission demonstrates that laws targeting insider trading are not limited to securities. Matter of Ruggles, CFTC Docket No. 16-34, order (CFTC, Sep. 29, 2016). The respondent, a former airline executive, was also subject to disciplinary action by the New York Mercantiles Exchange (NYMEX).

The commodities market has many similarities to the stock market, in terms of how trades occur and how the government monitors and regulates trading activity. A “commodity future” is a contract to buy a specified amount of a commodity at a specified price on a specified date. It is similar to an option contract in the stock market, since both involve obligations to purchase something at a later date at a set price, regardless of the market price. The CFTC, as indicated by its name, regulates commodity futures trading through the Commodities Exchange Act (CEA), 7 U.S.C. § 1 et seq. Traders are also subject to regulations established by the exchanges where trading occurs, such as NYMEX.

The respondent in Ruggles was the vice president of fuel for a major airline from mid-2011 until near the end of 2012. He was in charge of the company’s fuel-hedging strategy, which partly involved trading fuel futures. According to the CFTC, the respondent used information that was only available to him as an airline executive to trade crude oil, heating oil, and gasoline futures for personal gain. He reportedly used a financial account registered in his wife’s name to trade the same futures and options that he was trading for his employer. The CFTC alleged that this “all but guaranteed that the orders he placed” for himself “would be filled at advantageous prices.” Ruggles, order at 4.

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map with flagsNumerous states have modified their drug laws in recent years, easing many of the excesses of the “War on Drugs” and relaxing certain restrictions. More than half of the states in the U.S. now allow medical marijuana use to some extent, and a handful of states have decriminalized recreational use. At the federal level, however, drug laws have not changed. Federal law enforcement, at least hypothetically, has the authority to enforce federal drug laws in states that have partially or wholly decriminalized marijuana. It has not done so because of decisions by the Department of Justice (DOJ) and other executive agencies. With a new administration now in office and new nominees for Cabinet positions awaiting confirmation by the Senate, these policies could change. This uncertainty is not likely to have much impact in Texas, where the medical use of a marijuana-based product is allowed only in extremely limited circumstances. In certain other states, the impact could be significant.

The federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., prohibits marijuana under nearly all circumstances. Each state has its own drug laws. See, e.g. Tex. Health & Safety Code § 481.001 et seq. Many states allow medical marijuana use, and several states, such as Colorado and Washington, now allow its recreational use. In Texas, the Compassionate Use Act allows the use of low-THC cannabis, under medical supervision, solely for the treatment of intractable epilepsy. Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001 et seq. A bill introduced in the Texas Senate in December 2016, S.B. 269, would authorize medical marijuana, but its prospects for passage seem low.

As a general rule, the federal government may not direct state and local law enforcement agencies or officials to enforce federal laws. See Printz v. United States, 521 U.S. 898, 935 (1997) (“Congress cannot compel the States to enact or enforce a federal regulatory program.”) Unless state or local law enforcement agencies voluntarily offer their cooperation, federal enforcement is the responsibility of executive agencies like the DOJ.

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skylineA criminal prosecution typically begins with an arrest, and whether or not a defendant must remain in jail while they await trial depends on whether a judge or magistrate sets bail. This happens at a bail hearing shortly after the arrest. The Eighth Amendment to the U.S. Constitution prohibits excessive bail, and the Sixth Amendment guarantees the right to counsel in criminal cases. The state must provide counsel to indigent defendants, but not every indigent defendant in Texas gets a lawyer at their bail hearing. In Houston, the state’s largest city and second-largest metropolitan area, judges and other county officials have been accused of improperly denying defendants’ right to counsel, resulting in massive numbers of people charged with minor, nonviolent offenses remaining incarcerated because they cannot afford bail.

According to a report in the Houston Chronicle from early 2016, bail hearings in Harris County consist of arrestees appearing before a magistrate, who is actually in a different room and communicates with the inmate via television monitors. A prosecutor attends the hearings, but defense attorneys are not provided for indigent defendants. The magistrate reportedly sets bail based on a set of guidelines that look at the charge and the individual’s criminal record, but not factors like the person’s health or family responsibilities. Inmates who cannot afford attorneys are left on their own to argue against a prosecutor for lower bail.

The Harris County Public Defender has harshly criticized this system, stating that “an adversarial system cannot function when only one side shows up.” Even prosecutors have reportedly agreed to seek reforms that give more—or some—consideration to the constitutional rights of indigent defendants during bail hearings. Many judges, however, have opposed reform efforts, with one district judge reportedly saying that providing public defenders at bail hearings is not necessary because the bail hearing is not a “critical stage” of the case. Considering that the bail hearing determines whether or not a person can return to their life while the case proceeds, before the state has met its burden of proving guilt beyond a reasonable doubt, it certainly seems like a critical stage for most people.

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customs tapeThe U.S. Border Patrol checkpoint at Sierra Blanca in Hudspeth County, Texas has operated in one form or another for over a century. Located on Interstate Highway 10, the checkpoint has gained a certain notoriety as the site of numerous celebrity “drug busts,” particularly musicians’ tour buses traveling east from Los Angeles. Celebrities arrested at Sierra Blanca in recent years include Willie Nelson, Snoop Dogg, and Fiona Apple. The checkpoint’s primary purpose is immigration enforcement, while drug interdiction depends largely on the cooperation of local law enforcement. In 2015, the Hudspeth County Sheriff announced that he would no longer take marijuana cases from Border Patrol.

The Supreme Court has held that permanent roadside checkpoints near the U.S.-Mexico border, for the specific purpose of immigration enforcement, do not violate the Fourth Amendment’s prohibition on warrantless searches and seizures. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Fourth Amendment does not, however, allow the use of roadblocks and drug-sniffing dogs to conduct warrantless searches for illegal narcotics, according to the Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

According the U.S. Customs and Border Protection (CBP), Sierra Blanca played a role in immigration enforcement long before the Border Patrol even existed. A single “mounted guard” was stationed at Sierra Blanca and “charged with the enforcement of immigration laws in the area.” The Border Patrol established a station at that location soon after Congress created the agency in 1924. The Supreme Court ruled it constitutional 52 years later.

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droneCourts have identified exceptions to the Fourth Amendment’s prohibition on warrantless searches and seizures, as well as limitations on law enforcement’s authority within those exceptions, on a case-by-case basis for more than 100 years. As new technologies have appeared in society, and as law enforcement has adopted new investigative technologies, courts have struggled to keep up. Supreme Court decisions have applied at least two different theories, viewing cases in terms of either private property rights or an individual’s reasonable expectation of privacy. The “mosaic theory” of the Fourth Amendment, which is gaining some support in lower courts, looks at the long-term implications of aggregating surveillance data. A comprehensive surveillance program in Baltimore, Maryland, which only recently became known to the public, could force a reconciliation of these theories.

The most recent Supreme Court case to address warrantless electronic surveillance by police is United States v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012). That case involved the use of a GPS tracking device attached to a person’s vehicle, which gave police information on the vehicle’s location around the clock for a period of about four weeks. The court affirmed the D.C. Circuit Court of Appeals’ decision reversing the conviction on Fourth Amendment grounds. All nine justices considered the police’s actions to be unconstitutional, but they differed considerably in their reasons.

The majority opinion, written by Justice Scalia and joined by four other justices, was largely based on the private property theory. By installing the GPS device, police “physically occupied private property for the purpose of obtaining information.” Jones, 132 S. Ct. at 949. Justice Scalia cited “common-law trespass” as a basis for his ruling, id., and cited several recent cases that found Fourth Amendment violations based on electronic intrusions onto private property. See, e.g. Kyllo v. United States, 533 U.S. 27 (2001).

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ColoradoBefore stopping a vehicle, police must have reasonable suspicion that the stop will reveal evidence of a criminal or traffic offense. In order to search a vehicle or its occupants, they must have probable cause, which is subject to a higher level of scrutiny than reasonable suspicion. The Fourth Amendment guarantees these rights. A recent court case addressed whether police in a state where marijuana remains illegal may search a vehicle solely because of license plates from a state where it is legal. While the district court found that no actionable violation occurred, an appellate court found that this was a violation of the Fourth Amendment. Vasquez v. Lewis (“Vasquez I”), No. 5:12-cv-04021, mem. order (D. Kan., Nov. 26, 2014); No. 14-3278 (“Vasquez II”) (10th Cir., Aug, 23, 2016).

Defendants may move to suppress evidence obtained in violation of their Fourth Amendment rights in criminal cases. Many important decisions restricting law enforcement’s ability to conduct warrantless searches have originated from such motions. Another way to establish that a particular act or practice violates constitutional rights is through a civil lawsuit for violations of civil rights by a government agent under 42 U.S. § 1983.

It is important to note that the Vasquez rulings arise from a civil complaint, not a criminal prosecution. The burden of proof here was on the individual driver to prove that a violation occurred, rather than on the state to prove that a crime was committed. While the appellate court found that the officers violated the plaintiff’s Fourth Amendment rights, it remains to be seen whether future courts will consider this binding or persuasive precedent for criminal defendants making a similar argument.

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paper bagIn order to obtain a search warrant, a police officer must have probable cause to suspect that a search will turn up contraband, such as illegal drugs, or other evidence of criminal activity. The odor of marijuana is a very commonly claimed basis for probable cause. As more and more states adopt laws permitting marijuana use for medical or recreational purposes, courts must review whether the “odor of marijuana” is still so definitive for this purpose. Texas’ medical marijuana law is extremely limited, but many states now allow medical patients with a valid prescription to smoke marijuana. The Arizona Supreme Court recently ruled on a defendant’s challenge to a search warrant based on marijuana odor. The state appellate court reversed his conviction in 2015, citing the medical marijuana law. The state supreme court vacated most of that ruling, with some important caveats for the police. State v. Sisco, No. CR-15-02656-PR, slip op. (Ariz., Jul. 11, 2016).

No distinct definition exists for “probable cause,” and U.S. courts have adopted a variety of interpretations over the years. The U.S. Supreme Court expressly adopted a “totality of the circumstances” approach in Illinois v. Gates, 462 U.S. 213 (1983). It held that a magistrate must consider the circumstances presented in the search warrant affidavit, along with the “veracity” and knowledgeability of the person presenting the affidavit, to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238.

Marijuana is a Schedule I controlled substance under federal law, and, until recently, it has been heavily restricted under state laws as well. Courts have generally held that the odor of marijuana weighs strongly in favor of probable cause for a search warrant, provided that the officer making the claim about the odor has sufficient knowledge and training in the matter. State laws allowing medical and even recreational use of the drug complicate this analysis, since the mere odor of marijuana does not imply criminal activity in jurisdictions where the use of the drug is permitted. This was the finding of the Arizona Court of Appeals in the Sisco case, which vacated the defendant’s sentence. 359 P.3d 1 (2015).

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dogThe Fourth Amendment to the U.S. Constitution protects people’s privacy in “their persons, houses, papers, and effects.” Domesticated animals have been the subject of numerous unlawful seizure claims in animal cruelty cases. A recent decision by the Oregon Supreme Court addressed a different sort of claim. A defendant argued that police violated her Fourth Amendment rights by drawing blood from her dog without a warrant, essentially claiming that this was an unlawful search of her property. The court disagreed, ruling that a dog is not merely personal property in this legal context. State v. Newcomb, 359 Or. 756 (2016).

Texas has separate cruelty laws for “livestock animals,” including horses and cattle, Tex. Pen. Code § 42.09; and “nonlivestock animals,” which consists of any “domesticated living creature” like a dog, cat, or hamster, id. at § 42.092. Both statutes make it an offense to “fail[] unreasonably to provide necessary food, water, care, or shelter for an animal in the person’s custody.”

Texas courts have held that police may investigate suspected animal abuse or neglect on private property, without a warrant, when the animals in question are in plain view, McCall v. State, 540 S.W.2d 717 (Tex. Crim. App. 1976), but not when the animals are not visible from the street or another public vantage point, State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013). Police may seize an animal they suspect to be the victim of cruelty or neglect, without a warrant, under the emergency doctrine, which allows “a warrantless search and seizure when there is a need to act immediately to protect or preserve life, or to prevent serious injury.” Pine v. State, 889 S.W.2d 625, 631 (Tex. App.–Houston [14th Dist.] 1994), citing Bray v. State, 597 S.W.2d 763, 764 (Tex. Crim. App.1980).

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