Reprinted from "Marijuana Laws: An Empirical Study of Enforcement and Administration in Los Angeles County," UCLA Law Review 15 (September 1968): 1515-42, with the permission of the publisher.
Enforcement of the marijuana laws suffers from the same difficulties encountered in the enforcement of laws concerning other consensual crimes.' There is no victim to complain and there is little social pressure to conform to the law within the various subcultures involved.' The police compensate for these difficulties by developing aggressive techniques designed to ferret out the illicit activity, including the use of informants, undercover operators, and field surveillance.3
The effectiveness of enforcement can be measured only by determining the ratio of arrests to violations. But the effectiveness of enforcement of the marijuana laws is particularly difficult to determine because marijuana use is increasing so rapidly.4 The police readily admit that total enforcement of the marijuana laws is impossible.5 However, the heavy penalties placed on marijuana use by the legislature plus community concern place considerable pressure on the police to close the ever widening gap between violations of the law and actual arrests. At some point increased police efficiency in uncovering violations is going to clash with court-imposed barriers on investigation.5 The police response is pressure for relaxation of these barriers 7 and the development of means to work around them.8 These efforts, however, have been largely ineffective. At present, the police still depend largely on fortuity in apprehending marijuana violators.
Another factor which complicates the enforcement of marijuana laws is the increased geographical range of the problem. In the past, the police could isolate particular problem areas because the traditional users were Mexican-Americans, Negroes, and "artists" who lived within particular areas.9 Now, the rapid increase in use among 15 to 24-year olds 10 has spread the problem far beyond its traditional neighborhoods," and there are no longer any local police agencies which deny having a marijuana problem.'2
Arrest reports probably do not give an entirely accurate picture of the relative use of marijuana in particular areas. For example, although there are considerably more arrests in the Hollywood area than in West Los Angeles," the difference may not be due entirely to greater incidence of marijuana use in Hollywood. Part of the difference may be due to heavier police patrols in the Hollywood area, and part to the overt use of marijuana by the "hippie-type" youth in Hollywood (as opposed to more covert use by the student and young adult population of West Los Angeles).
Given the current spread of marijuana use, both numerically and geographically, and the limitations placed upon investigatory techniques, the primary means of increasing the percentage of apprehensions is to devote more manpower to the task. However, the investigation required to uncover consensual activities such as marijuana possession and sale requires great amounts of time 14—time which must be taken away from the investigation of other more violent crimes. This time commitment, along with the other social costs involved, should reflect a rational measure of the comparative importance of present marijuana laws.
II. THE DISTRIBUTIONAL SYSTEM
Los Angeles is a distribution center from which marijuana flows to the rest of the country.'5 Over 90 percent of the marijuana in Los Angeles County is grown in Mexico 16 and about 72 to 80 percent of this amount is shipped to Los Angeles by a group of separate, loosely knit syndicates that are organized particularly for this purpose.'' It is purchased by Mexican-based members of the syndicate for five to eight dollars a kilogram, processed locally, and shipped over the border by plane, boat, or special vehicles known as "mules." 18 After arriving in Los Angeles, the transporter calls a designated telephone number for instructions. He is told to deposit the cargo in a particular spot, such as a service station restroom, or he may be told to park the vehicle on a side street where the dealer will pick it up later. At no point is there any contact between the transporter and the stateside dealer." Once the dealer receives his shipment he "stashes" it in a concealed place. The stash is later divided into smaller quantities for distribution to local pushers or for transportation out of Los Angeles.
Marijuana not shipped by these syndicates comes across the border in the possession of small-scale pushers, usually individuals who have purchased the marijuana primarily for their own use and who bring back some extra to make a small profit by selling to their friends.
The last link in the distributional chain is the pusher. In the past, most marijuana use was in heavily patrolled low income areas where the pusher had a firsthand knowledge of police procedures. With the currently expanding market, however, the dealers have recruited "amateurs" from middle or upper income areas 20 whose previous contact with the police has been minimal and who are thus less circumspect in their dealings.
There is some dispute whether marijuana pushers also sell heroin and other hard narcotics. Some enforcement agencies, notably the Federal Bureau of Narcotics, claim that the marijuana pusher often switches to selling heroin.21 However, this claim is disputed by defense attorneys and other enforcement agencies who state that marijuana is usually sold exclusively.22 The claim of exclusivity is supported by the negative connotation heroin has to the marijuana user and pusher. Heroin users form a separate subculture and rarely come into contact with casual marijuana users.23 There appears, however, to be an increasing connection between the use of marijuana and the use of pills, such as the amphetamines, particularly among juveniles.24 Since both pills and marijuana are used by the same groups for similar purposes, it is reasonable to infer that the same pushers may be supplying them both.
III. ORGANIZATION AGAINST THE PROBLEM
Each law enforcement agency concerned with marijuana is organized to combat a particular aspect of the overall narcotics flow from importation down to use: the Federal Bureau of Narcotics and the California Bureau of Narcotics Enforcement combat the flow at the importation and major traffic levels; the various special narcotics units of local enforcement agencies are organized to uncover the local dealers and pushers; and the individual patrolman has the responsibility of apprehending the individual user.
The Federal Bureau of Narcotics (FBN) is vested with the broad authority to enforce all the laws of the United States pertaining to marijuana and narcotic drugs.25 In point of fact it is concerned only with major traffic, its policy being to stop the flow of marijuana at its source.2G To accomplish this end the FBN has agents spread throughout the world and has been the influential force behind the present international control agreements.27 The FBN claims to work closely with local and state agencies, but this claim is disputed by some of those agencies. They claim that the Bureau prefers to develop its own information and that it is generally uncooperative.
The California Bureau of Narcotics Enforcement is a part of the California Attorney General's Office." Ostensibly given the duty of enforcing all of California's narcotics laws, its function has been narrowed by directives from the Attorney General's Office assigning it the "detection and apprehension of major traffic." 29 This Bureau depends primarily on arrestees of local agencies to supply it with information.3°
Both the Federal and California Bureaus work with the United States Bureau of Customs and the Border Patrol in attempting to apprehend marijuana importers at the Mexican border. Border searches are a particularly useful enforcement device in view of the fact that they need not be accompanied by probable cause." The border patrolmen receive instructions from state and federal agents to search particular vehicles coming over the border. This information is usually obtained from informants inside the United States.32 The FBN also claims to get considerable cooperation from Mexican authorities.33 The California Bureau, however, admits that it gets little assistance from Mexican officials and the FBN's claim is disputed by other commentators.34
The larger police departments and the Sheriff's Department in Los Angeles County have special narcotics units which concentrate on uncovering local dealers and pushers.35 In addition, these same agencies have separate juvenile narcotics divisions concerned with all juvenile offenders and with adults who supply them.36 In the smaller agencies, responsibility for all narcotics enforcement usually lies with a couple of officers who devote only part of their time to the task.37
There appears to be a lack of any coordinated attack on marijuana traffic. Each of the law enforcement agencies involved operates at its designated level with only occasional contact with agencies at higher or lower levels. The California Bureau of Narcotics Enforcement does depend on local agencies for much of its information but can offer little help in return. The smaller police forces occasionally use undercover agents from the Sheriff's department and get the Sheriff's help in training their individual patrolmen. There is also some inter-agency cooperation in the chemical testing of seized marijuana for its presentation as evidence. Both the State Bureau and the smaller police forces depend on the Los Angeles Police Department or the Sheriff to do their testing."
The training and selection procedures of the various narcotics units tend to perpetuate the existing bias against marijuana already present in the unit. The training is done by the present agents and the medical evidence presented is generally on the side of the anti-marijuana lobby.39 Those individuals selected for the special units of the police must have considerable experience in law enforcement and a desire to become members.40 Thus they have generally formed their attitudes prior to becoming narcotics officers.
The individual patrolman is the last link in the enforcement chain. He is responsible for the detection of the individual user. This job comes to him by default through the inability of any of the other organizations to afford the time and the manpower to actively seek out the individual user. He is given training on how to identify marijuana by sight and smell 41 and learns to recognize the characteristics of someone under the influence of the drug. As marijuana use has increased, this training has been given greater emphasis with the result that the individual patrolman has developed a heightened awareness of marijuana use. This awareness has been a partial factor in the increase in marijuana arrests.42
The attitudes of patrolmen toward marijuana users are harder to assess than those of narcotics agents. They are not interested primarily in narcotics and thus probably have a less definite view on marijuana. Of those patrolmen interviewed only one expressed any doubts as to the validity of the stiff marijuana laws and he stated this had no effect on his enforcement of them.
IV. METHODS OF ENFORCEMENT
A. Informants and Other Informational Sources
Before a narcotics unit can justify committing its limited manpower it must first have reliable information on which to proceed. Thus the initial and most important requirement of marijuana enforcement is the development of dependable sources of reliable information. These sources of information may be broken down into the following categories: (1) professional informants; (2) local contacts cultivated by the police who voluntarily provide frequent information concerning marijuana activity within a particular area; (3) individuals arrested for marijuana violations who cooperate in exchange for possible reduced charges or a recommendation of a lenient sentence; and (4) the occasional or onetime source of information.
1. Professional Informants. The professional informant is the most valuable of these four sources to the local narcotics unit.43 A good informant can make up to $50 a day in Los Angeles.44 The pay scale is arbitrary depending on the individual agent's view of the quality and quantity of his informant's information. The only agency paying at a fixed rate is the United States Bureau of Customs which scales its compensation to the amount of marijuana uncovered by the information.45 The narcotics officers interviewed, however, did not feel that money was the sole factor motivating the professional informant. The informant often works for the psychological feeling of importance he gets through cooperating with the police. The police try to find out the motivation of each informant, particularly with unproved sources, in order to avoid the possibility that the informant has planted the marijuana on the suspect for purposes of revenge.
The professional informant is the narcotic unit's eyes and ears within the community. A good professional will be able to provide continually reliable information used by the police for field investigation, and will often introduce police undercover agents to suspected dealers and pushers. Because of his continuing value, the police are careful to protect the professional informer's identity, a task which is hampered by the disclosure rules currently prevailing in California.
The California Supreme Court, in a series of decisions, has laid down rules requiring the police to disclose the identity of their informant whenever he is a material witness to an issue of the defendant's guilt.46 This rule has been applied to require disclosure if the informant introduced an undercover agent to the defendant, even though the informant was not present when the illegal transaction occurred. The theory is that the informant is aware of the defendant's identity which is a "material issue." 47
Until 1967, the police in California were required to reveal their informant's identity whenever his information was the sole basis of probable cause to arrest or search.48 Section 1042 of the California Evidence Code now gives the judge discretion to require disclosure under these circumstances.49 The police officers interviewed claimed that judges usually require disclosure, while defense attorneys claimed the opposite. The police feel that the disclosure requirements have scared off many valuable professional informants, especially since police policy is to warn all prospective informants that their identity may be subject to disclosure at trial. If the police feel that the informant is particularly valuable or that his life might be in danger because of disclosure, they will refuse to identify him even though it might cost them the case."
One method of protecting the informant's identity is the so-called "double duke-in" sale. The informant introduces undercover agent A to the suspect and then drops out of the picture. A makes several buys and then introduces agent B to the suspect. B makes several buys with A dropping out of the picture. The only sales charged to the suspect are those made to agent B. Although an alert defense attorney may trace back through the entire transaction, thus requiring the police to reveal their original informant, many defenders fail to probe beyond agent A thereby leaving the informant protected.51
The informant's identity may also be protected by arresting him (or the police undercover operator) along with the pusher. This decreases the possibility that the seller will be able to identify the informant as a police operative.52
The police claim that no immunity is granted to informants working for them. The claim is roundly disputed by defense attorneys who assert that the police allow their better informants to use marijuana without fear of arrest as long as they supply information."53
2. Local Contacts. A second source of information comes from local sources the police have cultivated who frequently come into contact with marijuana users and pushers. Through experience the police have learned that certain groups of individuals can provide reliable information about marijuana activity in a particular area and the police respond immediately to any prof erred information from a member of these groups. They include prostitutes,54 hotel and motel owners, bartenders, theatre operators, and generally any individual who deals with a transient clientele. Since these sources are not paid, their motives vary considerably: some want to curry favor with the police; 55 some are attempting to keep their establishments free of undesirables; some are genuinely concerned citizens; and others merely get a psychological kick out of participating in a police arrest.56
One of the most profitable of these regular sources is the school official. The juvenile narcotic units attempt to nurture a close working relationship with school principals, encouraging them to report any students under the influence of drugs and to report any suspicious individuals lurking near the school grounds.57 The success of this police encouragement varies from school to school depending on the attitude of the individual principal. The principals of schools in smaller communities and in low income areas seem to report use of marijuana- by students to the police more often than principals of higher income, urban schools, although use in some of the latter is the highest in the county." It is claimed that the high school principal is also authorized to search student lockers 59 and the police encourage this as a means of uncovering marijuana. However, while school authorities are likely to report the student who comes to class obviously under the influence of narcotics, they apparently do not fully exercise their authority to search lockers.60
3. Arrestee Informants. A third type of informant is the arrestee who cooperates with the police in an attempt to obtain a recommendation for leniency from them. There is no lack of such potential cooperators since the first reaction of most marijuana arrestees is to ask what they can do to get off." The police claim not to make any specific promises, but they do tell the arrestee that any assistance he gives will be reported to the district attorney or the probation officer and thus to the court. The police generally will not release an individual merely because he has promised to cooperate with them; he must first make bail.62 Once out of jail the would be informant is on his own. He is told only to let the police know when he can give them some positive assistance. Such assistance requires that the arrestee inform against somebody who is actually selling marijuana and usually someone who is more than a minor pusher." The arrestee is told that the more information he gives the better it will go for him. This practice has aroused much criticism since it places pressure on young arrestees to inform on their friends." The police tend to obtain as much information as possible from such an informant before giving any favorable recommendation. The Federal Bureau of Narcotics, for example, requires that the arrestee set up a transaction between the police and the individual on whom he is informing before it will give any recommendation. Such an initial "turn" by the arrestee may start a chain of successive arrests followed by more "turns" leading eventually to the ultimate desired end, the apprehension of a major dealer.
The arrestee informant is employed by the police in a variety of ways to initiate the transaction necessary for an arrest for the sale of marijuana. The informant will introduce an undercover agent to a pusher or will make the buy himself. The latter method, called a "witness sale," requites the informant to be stripped and searched, sent to make the purchase, and stripped and searched again when he returns. This procedure prevents any possible frameup by the informant or any successful challenge in court when the marijuana is sought to be admitted as evidence.65 The police maintain as close a surveillance as possible at all times during the sale, often through the use of field glasses in an adjoining building, or through the use of an electronic eavesdropping device attached to the informant.66
The police will often use a witness sale to provide probable cause for a subsequent search of the seller's apartment, rather than charging him with that particular sale. There are two possible reasons for this. The first is that using the information solely for probable cause permits the judge to exercise his statutory discretion to protect the informant's indentity, which he could not do if the informant was a material witness to the sale.67 The second reason is that the judge may be less sympathetic to a possible claim of entrapment against the informant where the only issue is probable cause.68
The police allow the arrestee informant to set up buys 69 without supervision.70 The possibility of entrapment here is greater than where a purchase is set up by another type of informant or by a police under-cover agent. This is so for two reasons: (1) the arrestee is under great pressure to set up a transaction in order to obtain a reduced charge or a more lenient sentence; and (2) the arrestee is likely to make the purchase from a personal friend and use the friendship as a lever to extract a sale which the friend might not ordinarily make.
Entrapment is an affirmative defense to a criminal charge based on the rationale that the police have induced an individual into committing a crime which he would not have otherwise committed." Although arrestees and any other type of informants working for the police are subject to entrapment rules,72 the defense is an extremely hard one to prove. The defendant is required to show that the intent to commit the crime originated in the mind of the police, i.e., the informant.73 The prosecution can rebut this defense by showing a willingness on the part of the defendant to make the sale.74 Because of the difficulties of proof involved, the doctrine of entrapment is rarely used by defense attorneys.75
When the purchase of marijuana is made by an undercover agent from 'an on-the-street pusher, there is a sound argument for placing the burden of proof on the defendant to show lack of intent. A rigid entrapment rule applied in this case would make the apprehension of pushers aware of the work of undercover agents extremely difficult.76
However, where an arrestee is involved, because of the intense personal pressure on him to make a purchase, the inference of preexisting intent to sell is less. In order to acknowledge this difference, the entrapment rules might be altered by placing the burden of proof on the prosecution to show preexisting intent where the purchase was made by an arrestee. Such a burden could be discharged by showing possession of a large amount of marijuana by the defendant, by having the arrestee make more than one purchase, or by other circumstantial evidence. The issue of preexisting intent is usually met by having the agent or informant make two to three purchases."
It is not clear whether the defendant can use entrapment for sale to negate a separate charge of possession.78 If not, the police have a powerful weapon since they can entrap a suspect into a sale, and even if the sale is thrown out, still successfully prosecute him for possession.
Unlike local agencies, the California Bureau of Narcotics Enforcement depends primarily on information from arrestees.79 Although it has a limited number of regular informants, it does not have the manpower nor the proximity to the problem to develop a more extensive network. It gets cooperation from individuals it has arrested, but relies primarily upon arrestees of local agencies. The local agencies contact the State Bureau whenever they have an arrestee who has information on major traffic. Like the local agencies, the state claims that it'gives no guarantees to cooperating informants.
4. One-Time Informants. The final source of information comes from random calls from people within the community. The police tend to ignore these calls unless there is some indication that the caller can provide a solid lead." The police must be especially careful in this situation to look for the possibility of marijuana planted by someone with a grudge to settle. One informant who is not ignored, however, is the parent who reports finding marijuana in his child's possession. This is a large source of juvenile contacts.81
B. Field Operations
1. Field Investigation Units. Most police forces do not have a field investigation unit because of limited manpower.82 The Los Angeles Police Department's Special Field Investigation Unit is composed of five two-man teams, all sergeants with extensive experience in narcotics enforcement. They operate out of the Central Division and, unlike the average investigator, they do not respond to information coming into the office, but instead are engaged in continuous independent field investigation. The key to such an operation is the investigator's ability to evaluate and connect pieces of information, insignificant alone, into a picture of a major dealer and how he operates. The investigators work continuously at developing a network of reliable informants. One informant, for example, may have information that an individual is receiving and dispersing large shipments of marijuana. If this information is corroborated by other informants, the individual may be put under surveillance. If he is a major dealer, he will usually establish a systematic pattern, such as visiting places like a supermarket or a gas station with greatei regularity than the average individual. While the suspect is under surveillance the investigators are continuously rechecking with their informants. After what may be an extensive period of time, the investigation will have uncovered enough information to give the investigator probable cause to make a "bust." However, the investigator will usually wait until he believes the dealer has just received a shipment in order to arrest him before he unloads it. Because of the precise timing involved, the investigators ordinarily do not obtain a search warrant.83
2. Undercover Agents. Most agencies at some time employ undercover agents, although many of the smaller forces borrow them for a limited period from the Los Angeles Police Department or the Los Angeles Sheriff." Prior to 1950, undercover work usually involved a
disguised agent making two or more purchases with marked money from a suspect, who was then arrested. This limited the use of the good undercover worker, since once the arrest was made his name became known throughout the neighborhood and his effectiveness was destroyed. In 1950, the Los Angeles Police Department organized their present "buy program" which has been widely copied by large agencies all over the country. In this program the police send an agent into the field for a period of approximately three months, during which time he makes buys from numerous individuals. None of these people are arrested until "roundup day" at the end of this particular agent's period of work. This extended period enables the agent to become integrated into the community and facilitates the apprehension of a great number of pushers.
Undercover agents are recruited directly from the police academy without any prior patrol experience. Their appearance is made to conform to that of the average narcotics user in the community they will infiltrate. Agents placed in Watts will be goatee-wearing Negroes; agents on the Sunset Strip will be young looking and dressed in hippie garb; while agents in Hollywood will often wear homosexual attire. Although some agents are instructed to uncover both marijuana and heroin-pushers, this is unusual since heroin users seldom buy marijuana and such a combination of purchases would immediately arouse suspicion.85
The good undercover agent will attempt to become an integral part of the marijuana subculture he is infiltrating. He will hang out at the local gathering spots, go to the homes of his new found friends, and participate in "pot parties." Technically an agent who goes to a party and participates in the ritual passing around of a marijuana cigarette is as guilty as those he arrests. Of course the police never file charges against him, even though he may sometimes be arrested along with the rest of the participants to protect his identity."
The key element in the "buy program" is the agent's ability to identify the pusher from whom he made his purchases. This identification is crucial to the success of the program because it provides the exclusive basis for probable cause to make the arrest, and the judicial determination that such an identification constituted probable cause hinges largely on the reputation of undercover agents for accuracy. One case of mistaken identity proved at trial might have a deleterious effect on the whole program. Thus, if there is any doubt in the agent's mind about the identity of his supplier, the police prefer to drop the case. To aid in identification each agent is given a thorough briefing on identifying features to look for, such as scars and tattoos. He also is required to come to police headquarters after each transaction and record the details of the sale. This document is dated and later used to corroborate the agent's testimony for purposes of probable cause or proof of the charge.
The undercover agent makes three or four buys from each pusher. He then goes through police mug books and other sources attempting to identify the pusher by name. The police obtain arrest warrants on those the agent identifies and on "roundup day" they are arrested. In order to apprehend those pushers that the agent could not identify by name, the police take the agent through the area he worked in an unmarked car. The agent points out any pusher he recognizes and usually verifies his identification by approaching the pusher and calling him by the name he used when making the sale. On the strength of this identification, the pusher is immediately arrested without a warrant. A "roundup" results in the arrest of approximately 80 percent of the individuals from whom the agent purchased marijuana.87
C. Enforcement Through Patrol
A third means of enforcement involves arrests of marijuana users by the patrolmp,n or traffic officer. This category of enforcement provides the overwhelming majority of marijuana arrests, particularly those for possession. These arrests do not result from systematic attempts to uncover marijuana violators, but are a by-product of routine police investigation. In areas of high marijuana use, however, patrolmen are specifically on the lookout for marijuana users.
The patrol arrest usually occurs as a consequence of one of the following police actions: (1) the stopping of a vehicle for a traffic violation; (2) confrontation of allegedly underage juveniles for curfew violations; (3) the investigation of a loud party; and (4) the "frisk" of an individual stopped under the "stop and frisk" doctrine. The nagging question in all these situations is whether the police are truly interested in the conduct justifying the investigation or whether they are using that conduct merely as an excuse for investigating some other activity for which they have no legal basis. To the extent that the police use these procedures as a subterfuge to uncover marijuana use, they have effectively created a new "method" of marijuana enforcement.
1. Stopping of Vehicles. A large percentage of the arrests for marijuana possession results from the stopping of automobiles for minor traffic violations, with the subsequent discovery of marijuana either in the car or on the person of one of the passengers." The most common of these stops are for a missing taillight or for an unilluminated rear license plate. The police do not have probable cause for any search of the car based on the traffic violation alone. To justify the search they must have independent evidence indicating that contraband may be found in the vehicle." This requirement, however, may be waived if the driver voluntarily consents to the search." It is common for many drivers to grant such consent with full knowledge that the car contains marijuana, undoubtedly because of the natural impulse to avoid arousing police suspicions.91
The police may avoid the necessity of searching the automobile if one of the passengers tosses marijuana out of the window of the car as it is being stopped.92 This happens quite often as the instinctive reaction of most people is to get rid of any incriminating evidence the instant they see the red light of a police vehicle. Once they find the tossed marijuana, however, the police must connect it with one of the passengers in order to show possession.
In the absence of either consent or tossed marijuana, the police must establish probable cause to search the automobile. This may be obtained by one of the passengers making a "furtive motion," the odor of burnt marijuana coming from the car, marijuana being in plain sight inside the car, or one of the occupants of the car displaying the.,characteristics of intoxication associated either with alcohol or narcotic use.
The furtive motion authorizing a search usually results as the officer is pulling the car over for a minor traffic violation. The arrest reports typically state that as he shined his lights on the back of the car, the patrolman saw one of the occupants make a "furtive motion" as if to hide or throw away something. A few appellate decisions indicate that something additional, such as evasive action by the driver, must be present before the police have probable cause to search.93 Usually, however, the judge accepts the furtive gesture alone as being sufficient.94 This provides the police officer with an almost irrefutable method to "write-in" probable cause,95 although some attorneys have successfully gone to great lengths to prove that the officer could not have seen inside the car from his vantage point.96 Even accepting that the policeman did see the furtive motion, however, a sudden movement inside a car is open to a variety of interpretations and references. It is thus questionable whether such a movement satisfies the high degree of probability which has been required for probable cause in other areas.
Another basis for establishing probable cause to search a stopped automobile is that the officer detected an odor of burnt marijuana coming from the car.9' While it is true that the traffic patrolman is given brief instruction on what marijuana smells like, there is considerable dispute as to his actual ability to detect marijuana by this method. However, as in the case of a furtive motion, the policeman's testimony is usually accepted by the court as a valid basis for the search."
The police also search a stopped automobile if they see marijuana in plain view inside the car. This usually occurs when the officer shines his flashlight into the automobile, ostensibly to check the car registration, and sees marijuana on the seat or on the floorboard." Defense attorneys claim that many police "look for registration" throughout the car and that the marijuana does not become "clearly visible" until after the police relocate it from some location which was not initially in view. Occasionally, the visible marijuana used as a basis for the search consists solely of seeds. It is questionable whether a full scale search is justified merely on this evidence alone, since marijuana seeds do not differ radically in appearance from common garden variety seeds.
Another basis for the search of an automobile is the intoxication of the driver or passengers. The arrest reports usually state that the subject was intoxicated with no odor of alcohol on his breath and that his eyes became pinpointed under light—both characteristics of one under the influence of narcotics.102 Under such circumstances the inference of recent drug use is regarded as sufficient probable cause for a search."' Also, since any intoxication justifies a search, if the driver or passenger is obviously drunk the police can search the car for alcohol and if they find marijuana it can be admitted as evidence on the theory of lawful discovery.
2. Curfew Violations. A great many juvenile arrests, and some adult arrests, result from the police stopping youthful looking pedestrians for possible curfew violations.102 The procedure is to stop the suspect, sometimes shining a search light on him. This confrontation will often cause the person to throw away a marijuana cigarette or make a furtive motion in an attempt to hide one. In the first situation, the police merely retrieve the discarded cigarette and arrest the individual. In the situation where the individual attempts to hide the cigarette, the police have probable cause to search him. The furtive motion theory in this situation is harder to attack than when the person is in a moving automobile since the individual is totally visible and his actions are not as capable of various interpretations.
There may be a high degree of discriminatory enforcement of curfew ordinances insofar as they are used for the apprehension of marijuana users. The police know that the teenager with long hair dressed in "mod" attire is more likely to be using marijuana than the "straight" appearing youth who looks about the same age. Thus, it is tempting for the officer in an area of high marijuana use to confront the youthful "hippie" with the hope that he will find more than a curfew violation.1°3 There is also a thinly veiled hostility on the part of the average patrolman to the so-called "hippies" with their natural antipathy towards authority of any type, including police authority.'" It is difficult to prove any conscious discrimination in enforcement by the police, since they do not, of course, admit to such discrimination.
3. Complaints of Marijuana Use and Loud Parties. A third source of arrests results from an investigation, sometimes by the narcotics division, of a complaint by a tenant or neighbor that marijuana is being used or that there is a loud party on the premises.165 The police usually station one man outside a window of the residence. The others go to the door and announce themselves as required by statute.106 To escape arrest the residents will often toss the marijuana out of the window where the officer is waiting. He shouts this information to the other officers which establishes probable cause to enter the residence.107 They also have probable cause to enter if they hear a toilet flushing or any other indication that the occupants are attempting to dispose of contraband,108 or if they observe marijuana through an open window.
If the occupants open the door without giving the police cause to enter, the police may attempt to get consent to search the apartment. If this is refused they still have probable cause to enter if they smell burning marijuana.
4. Stop and Frisk. A final major source of arrests for possession is the "frisk" performed by the patrolman under the "stop and frisk" doctrine. In California, an individual can be stopped for questioning as long as the prudent officer would consider such a step necessary to discharge his duties.109
The usual justification for the stop is the presence of the suspect late at night under "suspicious circumstances." 11° These circumstances may include individuals parked in a car in a residential area or pedestrians on foot who appear to be engaged in some sort of suspicious activity. What constitutes "suspicious circumstances" seems to depend largely on the experience of the individual officer involved. For example, one officer may consider a parked car on a dark residential street with youths inside as being suspicious. Another officer, under the same circumstances, may require an additional element before his suspicion is aroused. These highly individual judgments of the police are traditionally encompassed in general phrases such as "present under suspicious circumstances in a high crime rate area." This phrase appears time and time again in the arrest reports studied, with the judge usually accepting it as being sufficient to justify the stop.111 There has, as yet, been no real definition of either the phrase "under suspicious circumstances" or "high crime rate area." 112
Incidental to a valid police stop, the officer often submits the suspect to a brief "pat-down" search, known as a "frisk," for the purpok of uncovering concealed weapons. The frisk is designed solely to protect the officer. Defense attorneys, however, claim that if the officer believes he might find marijuana, the frisk strains the limits of its definition. For example, in confronting a "hippie" type youth after curfew, if the police fail to establish grounds for a full scale search, they allegedly will submit him to a frisk in which every thread of his clothing is carefully gone over. If during this frisk the police feel what appears to be a cigarette, then, depending on the circumstances surrounding the stop, they may have probable cause to reach inside the individual's pocket and extract the suspected marijuana cigarette.113
It is difficult to distinguish between a valid frisk for weapons and an alleged illegal search for marijuana under the guise of a frisk. If the recent Supreme Court "stop and frisk" decisions 114 are applied carefully by the lower courts much of this problem will be avoided. Those cases require the policeman to be able to point to particular facts that led him to believe the person was armed and dangerous."' In addition, the scope of the search must extend only to the extent necessary to uncover dangerous weapons."' But if these safeguards fail to deter the police from making searches for marijuana under the guise of a frisk for weapons, only two solutions remain. One, which is clearly undesirable, would be to do away with the frisk altogether. The other would be to refuse to admit as evidence any contraband found as a result of the frisk.117
V. SELECTIVE ENFORCEMENT
Selective enforcement results from conscious police decisions not to invoke the criminal process against certain classes of violators. These decisions, in marijuana enforcement, are premised on the realization that it is not possible to enforce the laws against all violators.118 Selective enforcement of the marijuana laws, unlike that of homosexual offenses, does not appear to be conditioned on the undesirability of enforcing the laws under certain circumstances.119
All enforcement agencies interviewed indicated that marijuana enforcement was, by necessity, selective. This selectivity stems from police determinations regarding the necessity of uncovering one type of narcotics offense rather than another; police discretion in the geographical distribution of patrolmen resulting in de facto discrimination against some groups; police discretion in the arrest of juvenile offenders; and attempts by the police to persuade the courts to deal more severely with some individuals.
Because of manpower limitations the police must decide which type of narcotics offender they are going to place the highest priority on uncovering. This decision may vary from agency to agency. For example, one agency may place the highest value on the apprehension of a major marijuana dealer, while another agency would favor the apprehension of a heroin pusher. This type of decision is influenced by four factors: (1) the type of activity involved (e.g., sale or possession); (2) the volume of the drug or narcotic involved; (3) the individuals involved; and (4) the drug or narcotic involved.
The Federal Bureau of Narcotics, the California Bureau of Narcotics Enforcement, and the police narcotics investigation units claim to be solely interested in professional marijuana importers, dealers and pushers rather than the individual user.12° It is clear that this is true for the federal and state agencies. But some defense attorneys claim that the police special units use informants to entice ordinary users to commit sales.121 The smaller police departments, without special narcotics squads, generally have the same priority of sale over possession, although the smaller the community, the more likely it is to respond to any reported activity.122 The state and federal narcotics bureaus are solely interested in major traffic and do not respond to other types of leads.1" The local units attempt to apprehend all pushers, although they are primarily interested in the regular pusher who is a consistent link in the overall traffic.124
It is apparent that small pushers are pursued more vigorously if juveniles are involved. While both the Los Angeles Police Department's Narcotics Division and Juvenile Narcotics Division do field investigations, the latter is more likely to engage in a full scale investigation to apprehend a small scale pusher than is the former.125
Finally, the decision of an agency to follow up a lead may depend on whether the narcotic is heroin or marijuana and this, in turn, depends on the individual agency. The California Bureau admits that all other things being equal, it would prefer to get two ounces of heroin rather than 10 kilos of marijuana.126 But this feeling is not shared by the majority of local police forces who generally consider marijuana an equal or greater threat than heroin.127 In fact, since heroin comes in smaller amounts than marijuana and is easier to destroy, the police may prefer to concentrate on making marijuana arrests.128 The attitude of the smaller police forces depends on the attitude of the individual primarily responsible for narcotics enforcement. Generally, although there are some notable exceptions, these smaller communities have little problem with heroin.
The juvenile narcotics officer likes to view himself as part policeman, part juvenile counselor. His implementation of this latter role is especially important since it affects his decision whether to exercise his statutory discretion to counsel and release an arrested juvenile, or to file a formal arrest report, requiring the juvenile to attend a hearing with a probation officer.126 His decision will be based on how effective he believes a simple lecture to the juvenile on the evils of marijuana will be toward deterring future use.'" The factors going into this decision are generally the same as those considered by a juvenile court judge in deciding whether to release a juvenile to his parents.131 They include past record, family stability, school record, and general willingness to cooperate.132 The type of case most amenable to counsel and release occurs when the parent reports the juvenile's activity and comes with him to the police station for consultation.133 In other cases the narcotics officers will go to the juvenile's home to inform his parents of the problems and observe firsthand the potential for rehabilitation. The juvenile officer's role as a counselor might be attacked as an undesirable encroachment upon the probation officer's field of concern. But it seems desirable to avoid exposing the juvenile to the entire criminal process if it doesn't appear necessary. This may be particularly true in small communities where the police often know the juvenile personally and have a more thorough familiarity with the family situation than any probation officer could attain.'" It is difficult to judge the effectiveness of the counsel and release since there are no accumulated statistics showing the number of juveniles released who are later arrested for drug use.
The police decision on where to concentrate their routine patrol activities, although not necessarily motivated by marijuana usage,135 nevertheless may cause greater enforcement in one area than another. Since the majority of arrests come from routine patrolling, the heavier patrolling of areas with higher incidences of violent crime will undoubtedly result in a higher percentage of marijuana arrests in proportion to actual use than in more lightly patrolled areas. This may be part of the reason for the high percentage of Negroes and Mexican-Americans arrested.136
There is no evidence of any conscious discrimination against one group based solely on marijuana use, with the possible exception of the aforementioned "hippie" type youth.137
There is no evidence that the extent of the arrestee's marijuana involvement affects a decision whether to arrest. The police, however, often try to influence the court's disposition of convicted offenders. This is usually done by police contribution to the probation report to encourage the judge to give a stiffer sentence to the professional pusher.'" The police may also attempt to influence the court's disposition by refusing an offer of cooperation by an individual they desire to see given a stiff sentence.139
1. For a general discussion of the problems involved in enforcing consensual crimes see E. Schur, Crimes Without Victims (1965); L. Tiffany, D. McIntyre, & D. Rottenberg, Detection of Crime 208-13 (1967) [hereinafter cited as Tiffany]; Project, The Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, 13 U.C.L.A. L. Rev. 644, 686 (1965) [hereinafter cited as Homosexual Project].
2. A subculture may be loosely defined as a "culture-within-a-culture, with its [own] distinctive values and behavior norms...." E. Schur, supra note 1, at 85. Schur indicates that legal repression of some activities, such as homosexuality or the use of addictive narcotics, may in fact directly stimulate the creation of subcultures centered on those activities. Id. at 141-45. Marijuana, however, has been incorporated into the life style of existing subcultures such as those of the ghetto Negro and the Sunset Strip "hippie," rather than being the cause behind the creation of those subcultures.
3 Jerome Skolnick notes that the police enjoy narcotics work because it requires skillful and efficient detective work initiated by the policeman himself. J. Skolnick, Justice Without Trial 117 (1966).
4 To the extent that arrests are an indication of increased illegal activity the record is striking. During the period 1960 through 1966 adult arrests for marijuana violations in Los Angeles County increased 217% from 2,704 in 1960 to 8,564 in 1966. Juvenile arrests in the county increased from 694 in 1960 to 2,636 in 1966, a gain of 280%. Cal. Dep't of Justice, Bureau of Criminal Statistics, Drug Arrests and Dispositions in California 6-7 (1966) [hereinafter cited as Dispositions 1966].
5 Chief Thomas Reddin of the Los Angeles Police Department admits that all the police can do is try to keep marijuana under control. L.A. Times, Dec. 4, 1967, § 2, at 6, col. 1.
This results from two alien views on what should be the primary emphasis of the criminal process. The police believe the process should be geared to efficiency in the discovery of those violating the law. The courts, interpreting the law, emphasize the rights of an individual to be free from certain police tactics even if this means a reduction in police efficiency. See Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964).
7 Police pressure resulted in the passage of a new evidence code section allowing the judge discretion in deciding whether to require the police to reveal their informant where probable cause to arrest or search is the sole issue. Cal. Evid. Code § 1042 (West 1965). See State of California, Final Report of the Special Study Commission on Narcotics 43-47 (1961) [hereinafter cited as Special Study].
8 This does not necessarily mean illegal actions by the police, but includes techniques not prohibited by law designed to circumvent informant disclosure or probable cause requirements. See Section IV infra.
9 See testimony of Luke McKissick, in Hearings on Marijuana Laws Before the Cal. Senate Pub. Health & Safety Comm., Oct. 18, 1967, at 87 [hereinafter cited as Hearings]. The percentage of adults arrested for marijuana offenses in Los Angeles County of Negro descent has remained fairly constant during the period from 1960 to 1966. In 1960, 33.6% of adult arrestees were Negro; in 1966, the figure was 31.0%. However, the corresponding figures for Whites and Mexican-Americans have changed significantly. In 1960, the percentage of arrestees who were White was 44.3%; in 1966, 53.6%. During the same period the equivalent percentages among Mexican-Americans declined from 21.0% to 14.6%. Compare Dispositions 1966, supra note 4, at 56, with Cal. Dep't of Justice, Bureau of Criminal Statistics, Narcotic Arrests and Their Dispositions in California 17 (1960).
10 This age grouping represents a consensus drawn from responses of local enforcement agencies when asked what age group was primarily responsible for the increase in marijuana arrests.
11 The traditional marijuana problem areas were the Watts area with its high Negro population, the East Los Angeles area with its high Mexican-American population, and the Hollywood and Venice areas with a high percentage of "artists" and fellow-travelers as residents. While these areas still provide the most arrests, there has been a spectacular increase in arrests, particularly among juveniles, in the traditionally respectable White middle-class areas. For example, the Covina Police Department reports a 700% increase in arrests within a one year period (1966-67). This is a fairly typical suburban community.
Juvenile arrests also increased dramatically in two Los Angeles Police Divisions located in the predominately White San Fernando Valley. Arrests by the West Valley Division went from 32 in 1965 to 430 in 1967 while arrests by the Van Nuys Division increased from 28 in 1965 to 278 in 1967.
Lieutenant William Pettit of the Manhattan Beach Police Department estimates that 30% of the students of Manhattan Beach High School have tried marijuana. Interview in Manhattan Beach, Jan. 16, 1968 [hereinafter cited as Pettit Interview]. Attorney Marvin Cahn makes a similar estimate of 90% of the students at Hollywood High School. Interview in Los Angeles, Jan. 3, 1967 [hereinafter cited as Cahn Interview]. In a recent poll of students at UCLA, 3377 of the 9589 responding claimed to have tried marijuana at least once. UCLA Daily Bruin, Jan. 4, 1968, at 3, col. 3.
12 Of the enforcement agencies responding, the percentage of marijuana arrests to total arrests ranged from 1% in Culver City to 16% in Pasadena. Pasadena has a separate narcotics unit which may account, in part for the higher percentage.
13 Of the 738 adult arrests studied, 90 were made by the Hollywood Division of the Los Angeles Police Department and 13 by the West Los Angeles Division. In 1967 (through November) 368 juveniles had been arrested by the Hollywood Division as compared with 228 by the West Los Angeles Division.
14 See J. Skolnick, supra note 3, at 139. Not only is this time spent on patrol and investigation, but it includes time spent by the police in court pursuant to a marijuana prosecution. Police responses indicated that the successful prosecution of the average marijuana case requires from four to eight hours of court attendance by the arresting officer.
15 The Van Nuys News and Valley Greensheet, Sept. 12, 1967, at 16-a, col. 5 (central ed.).
16 Special Study, supra note 7, at 19.
11 The bulk of the information presented in this section was obtained from an interview with Mr. John Warner, Field Supervisor of the California Bureau of Narcotic Enforcement, in Los Angeles, Jan. 9, 1967. His assertion that continuing operations account for most of the imported marijuana is disputed by others, including attorney Marvin Cahn and sociologist Jerry Mandel. They claim that marijuana is too bulky and the eventual profit too low to make a continuing organization possible. Cahn Interview, supra note 11. Mandel, Myths and Realities of Marihuana Pushing, in Marihuana Myths and Realities 58, 76 (J. Simmons ed. 1967).
18 The "mule" is an ordinary truck or automobile which has been specially outfitted to transport up to 1100 kilograms of marijuana.
19 The precautions are so elaborate that the transporter may park an empty car, observe who gets in it and follow him to be sure he isn't a police plant. Warner Interview, supra note 17.
20 This is necessary because a successful pusher must be integrated into the community in which he sells. Narcotics users will seldom buy from a total stranger and few experienced pushers desire to sell to total strangers. The new breed of pusher is typically a student, who started as an occasional user and began picking up extra money by selling to acquaintances.
21 Interview with an agent of the Federal Bureau of Narcotics, in Los Angeles, Mar. 19, 1967 [hereinafter cited as FBN Interview].
22 Cahn Interview, supra note 11; Interview with Luke McKissick, Attorney, in Hollywood, Mar. 13, 1968; Warner Interview, supra note 17.
23 Interviews with enforcement agencies indicate that, even in areas where there is a high incidence of both marijuana and heroin use, undercover agents are advised to deal in one drug or the other, since an agent buying both heroin and marijuana would be suspect.
24 Statistics compiled on juvenile arrests in 1967 by the Los Angeles Police Department, Juvenile Narcotics Division, indicate a rapid increase over 1966 in both dangerous drug arrests and marijuana arrests. As of December, arrests
through the first 11 months of each year were:
Dangerous Drugs 397 1062
Marijuana 1522 2910
Interviews with high school teachers indicate that the use of amphetamines and other dangerous drugs is becoming as severe a problem as marijuana use among high school students.
In our sample of 204 juvenile cases, 58 of those arrested had pills as well as marijuana.
25 26 U.S.C. § 7607(2) (1964). As this project was being prepared, President Johnson submitted a government reorganization plan which abolished the Federal Bureau of Narcotics and the Bureau of Drug Abuse Control as separate agencies, and combined them into a new organization, The Bureau of Narcotics and Dangerous Drugs, under the Department of Justice. The reorganization became effective April 8, 1968. Sterba, The Politics of Pot, Esquire 119 (Aug. 1968).
26 FBN Interview, supra note 21.
27 The present United Nations Treaty is known as the Single Convention on Narcotic Drugs. It urges member nations to take measures to control marijuana, but not necessarily to prohibit it. The former commissioner of the Federal Narcotics Bureau, Harry Anslinger, continually sought to keep the United Nations committed to the position that marijuana is an addictive drug. See McGlothlin, Toward a Rational View of Marihuana, in Marihuana Myths and Realities 19193 (J. Simmons ed. 1967).
28 Cal. Health & Safety Code §§ 11100-07 (West 1964). The Code denominates the organization "Division of Narcotic Enforcement" but most people, including those within the organization, refer to it as the "Bureau of Narcotic Enforcement."
29 The other assigned functions are to prevent the unauthorized use of licensed narcotics (which has nothing to do with marijuana since there is no authorized use for which it can be licensed) and to aid local agencies in narcotics enforcement (which the Bureau does not have the manpower to do anyway). Warner Interview, supra note 17.
39 See text accompanying note 79 infra.
31 The fourth amendment's prohibition against unreasonable searches has been held not to forbid border searches made without probable cause. The standard applied is one of mere suspicion that the vehicle might be carrying contraband goods. 19 U.S.C. § 482 (1964). See Carrol v. United States, 267 U.S. 132, 138 (1925); King v. United States, 348 F.2d 814 (9th Cir. 1965); Witt v. United States, 287 F.2d 389 (9th Cir. 1961), cert. denied, 366 U.S. 950 (1961). For a detailed discussion of border searches see Comment, Intrusive Border Searches—Is Judicial Control Desirable, 115 U. Pa. L. Rev. 276 (1966); 18 W. Res. L. Rev. 1007 (1967).
32 Warner Interview, supra note 17.
33 FBN Interview, supra note 21.
31 Mandel, supra note 17, at 75. Mandel describes the various payoffs and concessions which must be made to the Mexican Federales to get them to show much interest in stopping the flow north.
35 Of those agencies contacted three had special narcotics units. These were the Los Angeles Police Department, the Los Angeles County Sheriff, and the Pasadena Police Department.
36 Interview with Sergeant Gene Zappey, Los Angeles Police Department Juvenile Narcotics Division, in Los Angeles, Jan. 11, 1967.
37 The smaller agencies indicated that they often try to keep one man continually on narcotics matters but because of manpower shortage, this is difficult. If a large "bust" is planned practically the whole department may be used.
38 The two tests used are the Duquenois and the Bouquet tests which indicate the presence of tetro-hydro cannabinol, the active ingredient present in marijuana, hashish, and other derivatives of the hemp plant (cannabis saliva). A positive result from the test is presumptive evidence that the material being tested is marijuana.
39 Mr. John Warner of the State Bureau of Narcotics Enforcement said that he gave the lectures on the physical and psychological effects of marijuana to his trainees. The literature used in the talks is all anti-marijuana in nature. It all consists of reputable authorities, including the positions of the American Medical Association, the California Medical Association and the United Nations Committee on Drugs. In a recent speech at U.C.L.A. entitled "The Fuzz Looks at the Grass Problem" Warner concluded that marijuana is psychologically addicting, that it has many deleterious physical effects on the user, and that the use of marijuana leads to heroin addiction.
40 For example, the Los Angeles Police Department's Juvenile Narcotics Division accepts applicants only if they have five years of service, an outstanding record, plus a strong desire to become a narcotics agent. Zappey Interview, supra note 36.
41 The patrolman learns to identify marijuana by the wrapping used. "Bricks" (kilogram quantities) often come wrapped in tinfoil. "Lids" (ounce quantities) usually come in wax paper bags. "Joints" (marijuana cigarettes) look like hand-rolled cigarettes, twisted at both ends.
42 This is a view expressed by both narcotics agents and defense attorneys. It is reasonable to assume that patrolmen more extensively trained to spot marijuana violators will be more perceptive to possible violations while on patrol.
43 Apparently the only agencies who pay informants are those with a separate narcotics unit. Of the nine agencies from whom information was collected, four did not pay their informants. These four were the smaller police departments without a separate narcotics unit.
44 Interview with Sergeant George Barber, Los Angeles Police Department Narcotics Division, in Los Angeles, Jan. 10, 1967. The Los Angeles Police Department pays its informers out of a special fund budgeted for this purpose. Both the Federal Bureau of Narcotics and the State Bureau are allotted funds to pay their informers.
46 FBN Interview, supra note 21.
46 People v. McShann, 50 Cal. 2d 802, 330 P.2d 33 (1958); People v. Castiel, 153 Cal. App. 2d 653, 315 P.2d 79 (1957).
47 People v. Durazo, 52 Cal. 2d 354, 340 P.2d 594 (1959).
48 Priestly v. Superior Court, 50 Cal. 2d 812, 330 P.2d 39 (1958). 42 Cal. Evid. Code § 1042 (West 1965). 55 Barber Interview, supra note 44.
51 Warner Interview, supra note 17.
52 See Tiffany, supra note 1, at 258.
53 There is little doubt that this is so with regard to heroin informants. See Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L.I. 543, 565-67 (1960). However, it seems less likely with marijuana informants since an individual does not become dependent on marijuana to the extent he does on heroin. What probablyhappens is that the narcotics unit will ignore use of marijuana by one of its informants as long as he is working for it. But if he is arrested separately by an individual patrolman, he is not given immunity.
54 The information from prostitutes comes by way of the vice squad. Some attorneys claim that the police let prostitutes operate unmolested in return for narcotics information. The police, of course, deny this. Jerome Skolnick indicates that the police are willing to trade the arrest of a common prostitute for the arrest of a marijuana pusher, since the pusher has a higher moral culpability in the policeman's eye. J. Skolnick, supra note 3, at 118.
55 Most owners of public establishments feel that it is smart to stay on the good side of the police by scrupulously avoiding any reputation of catering to a questionable clientele, which might result in the loss of their licenses.
56 The police find that after turning in someone, the informant will often insist on being on the scene to witness the arrest. Participating in a live arrest gives an informant a feeling of importance which is psychologically gratifying. Barber Interview, supra note 44.
57 The school officials usually call in directly to the juvenile narcotics office and the juvenile officers will give official advice on how to handle an unruly student, until the police arrive. Zappey Interview, supra note 36. Out of 110 juvenile arrest reports studied, eight of the arrests were initiated by school authorities.
58 Estimates of marijuana use among high school students at Palos Verdes High (an upper-class Los Angeles suburb) range from 50% to 75% of the student body. Time, Aug. 30, 1968, at 44.
Morton, et al. 261
59 This was the claim of the juvenile narcotics authorities. In actuality, there is no specific authorization for such a search under rules set down for the administration of the Los Angeles City Schools; but since there is no prohibition against it, the authority is assumed.
60 A check with principals in the West Los Angeles area indicated that none of them ever search their students' lockers.
61 The police claim that they do not bring up the subject of "finking"; they only respond when an arrestee asks if he can do anything to help his case. However, defense attorneys claim that arrestees who are believed to have valuable information are encouraged by the police to cooperate. This is more likely to happen in small towns where the police have no special narcotics unit and where any one arrestee may be able to tie the police in with most of the marijuana activity in town.
62 This is the announced policy of the Los Angeles Police Narcotics Unit.
63 This would follow from the claims of the narcotic units that they are interested only in the professional pusher or dealer. Defense attorneys, however, claim that the police will try to get the arrestee to "turn" anyone he knows. It is possible that this happens in some of the smaller cities where the local police may view any use of marijuana as a serious offense. One of the defense attorneys interviewed had an affidavit taken from a 19-year-old arrested by a small southern Los Angeles County community. The youth claimed he had been required to "turn" several of his friends, none of whom were regular pushers, in return for police recommendation of a reduced sentence. Cahn Interview, supra note 11.
64 The pressures placed on arrestees to cooperate can be extremely severe in the hands of some police. For example, the police can threaten the arrestee with exorbitant bail if he does not cooperate. See testimony of Luke McKissick, in Hearings, supra note 9, at 78.
65 The use of women informants is inconvenient for this purpose since the vagina can be used as a hiding place. Thus the skin search must be done with female personnel. Tiffany, supra note 1, at 255.
66 Barber Interview, supra note 44.
67 There is still a possibility, however, that the informant may be held to be a material witness to the defendant's guilt. See text accompanying note 46 supra.
68 It is doubtful whether the defendant can raise the issue of entrapment to defeat probable cause, since theoretically entrapment is an implied defense to the substantive crime and is therefore inapplicable when sought to be invoked to defeat probable cause. See text accompanying note 78 infra.
69 Five of the nine agencies responding stated that they do not use cooperating informants to actually make purchases. However, these informants are used to set up transactions where an undercover agent makes the purchase.
70 None of the agencies interviewed indicated that they gave a potential informant instruction on how to set up a transaction.
71 Sorrels v. United States, 287 U.S. 435 (1932); People v. Benford, 53 Cal. 2d 1, 345 P.2d 928 (1959); People v. Adams, 213 Cal. App. 2d 536, 29 Cal. Rptr. 57 (1963).
72 People v. Perez, 62 Cal. 2d 769, 775, 401 P.2d 934, 937 (1965) ("someone acting in cooperation with the authorities"). See Comment, The Defense of Entrapment in California, 19 Hastings L.J. 825 & n.2 (1968). The issue of just who is a police agent for purposes of applying entrapment rules has never been adequately discussed. Courts have treated, without discussion of their status, paid informers and those acting under promises of immunity, as government agents. See Donelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1109 (1951).
73 People v. Jackson, 42 Cal. 2d 540, 547, 268 P.2d 6, 11 (1954); People v. Cordero, 240 Cal. App. 2d 826, 829, 49 Cal. Rptr. 924, 926 (1966). See Comment, The Defense of Entrapment in California, supra note 72, at 842.
74 People v. Sweeney, 55 Cal. 2d 27, 49, 357 P.2d 1049, 1062, 9 Cal. Rptr. 793, 806 (1960); People v. Harris, 210 Cal. App. 2d 613, 26 Cal. Rptr. 850 (1962).
75 None of the enforcement agencies responding felt the entrapment laws were a barrier to enforcement. Out of 738 arrest reports studied, only three defendants were acquitted because of entrapment.
76 There is probably more justification for a liberal entrapment rule in narcotics transactions than in homosexual solicitations. The narcotics laws are aimed at the availability of the narcotic and police solicitation may be the only way to eliminate that availability. However, homosexual laws are aimed largely at unprovoked solicitations and the entrapment doctrine should be applied more strictly to prevent solicitations provoked by the police. See Homosexual Project, supra note 1, at 701-02.
77 Barber Interview, supra note 44; FBN Interview, supra note 21; Warner Interview, supra note 17.
78 Probably not, since entrapment in theory is treated as an implied defense to the particular crime for which the defendant is charged. United States v. Kaiser, 138 F.2d 219 (7th Cir. 1943), cert. denied, 320 U.S. 801 (1944); Donelly, supra note 72, at 1110. However, if it can be shown that but for the illegal police conduct (entrapment), the marijuana would not have been discovered, then it is arguable that the marijuana is "tainted" evidence and therefore inadmissible against the defendant, to show possession. See Wong Sun v. United States, 371 U.S. 471 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
79 Warner Interview, supra note 17.
89 The police get a surprising number of calls from people who have "heard that someone down the street is smoking marijuana," from people who won't give their names, and from obvious cranks. The State Bureau gets numerous calls from sheriffs and concerned citizens of small communities who have found one of the local youths with a marijuana cigarette and demand that the Bureau do something to eradicate the problem.
81 Out of 204 juvenile arrests studied, 22 were initiated by the juvenile's parents.
82 Of the nine enforcement agencies responding, only the Los Angeles Police Department and the Los Angeles County Sheriff had a special field investigation unit.
83 In only 25 of the 738 adult cases studied was a search warrant used.
84 Of the nine enforcement agencies responding, seven used undercover operators at some time. Three of these agencies—the Los Angeles Police Department, the Los Angeles County Sheriff, and the Pasadena Police Department—used their own personnel. The other four agencies occasionally used agents supplied by the Sheriff.
85 See text accompanying note 22 supra.
86 Tiffany, supra note 1, at 258.
87 Barber Interview, supra note 44.
88 Out of the 658 arrests studied in which this information was available, 230 were initiated through automobile traffic violations.
89 See People v. Burke, 61 Cal. 2d 575, 579, 394 P.2d 67, 69, 39 Cal. Rptr. 531, 533 (1964); People v. Terry, 61 Cal. 2d 137, 152, 390 P.2d 381, 391, 37 Cal. Rptr. 605, 615 (1964). A citation for a traffic violation of itself does not justify a search of the car. People v. Anders, 167 Cal. App. 2d 65, 67, 333 P.2d 854, 856 (1959).
90 People v. Michael, 45 Cal. 2d 751, 753, 290 P.2d 852, 854 (1955); People v. Weire, 198 Cal. App. 2d 138, 142, 17 Cal. Rptr. 659, 661 (1961). A suspect's consent may be implied from his opening of a car door which jammed when the officer tried to open it from the outside. People v. Williams, 148 Cal. App. 2d 525, 307 P.2d 48 (1957).
91 There were 24 consensual automobile searches among the 658 arrest reports studied in which this information was available.
92 Out of 658 adult arrests, 38 were initiated because of marijuana being thrown out of an automobile window. See text accompanying notes 25-28, Part Ill infra.
93 People v. One 1958 Chevrolet Impala, 219 Cal. App. 2d 18, 20, 33 Cal. Rptr. 64, 66 (1963); People v. Tyler, 193 Cal. App. 2d 728, 732, 14 Cal. Rptr. 610, 612 (1961).
94 The leading case on the matter, People v. Blodgett, 46 Cal. 2d 114, 293 P.2d 57 (1956), appears to sanction the use of a "furtive motion" as sole grounds for probable cause to search. This is the usual interpretation. See People v. Shapiro, 213 Cal. App. 2d 618, 28 Cal. Rptr. 907 (1963) (defendant lowered her head as if to hide something); People v. Sanson, 156 Cal. App. 2d 250, 319 P.2d 422 (1957) (police noticed defendant withdraw his left hand from seat).
95 The suspicion that this does occur is heightened by the almost total uniformity of the arrest reports. The traffic officer appears to be aware that if he tailors his report to a certain style with certain facts, he will almost certainly have it accepted by the court.
96 One of the attorneys interviewed took the jury outside the courtroom to view the defendant's car from the same vantage point as the arresting officer. The car was an early model coupe with a small rear window, and the attorney was able to demonstrate that no one could see a "furtive motion" through the rear window.
97 Out of 658 arrest reports studied, there were 30 instances of the police smelling burnt marijuana.
98 People v. One 1961 Ford Falcon, 215 Cal. App. 2d 149, 30 Cal. Rptr. 110 (1963).
" See People v. Galceran, 178 Cal. App. 2d 312, 316, 2 Cal. Rptr. 901, 903 (1960). Out of 658 adult arrest reports studied, there were 42 instances where the police discovered marijuana in this manner.
100 There were 68 instances of adults being under the influence of marijuana in the 658 adult arrest reports studied. However, there were only two instances in the entire adult sample where the defendant was charged with driving under the influence of narcotics. Cal. Vehicle Code § 23105 (West 1960).
101 People v. Di Blasi, 198 Cal. App. 2d 215, 18 Cal. Rptr. 223 (1961).
102 Five out of 658 adult arrests and 54 out of 204 juvenile arrests were initiated by stops for suspicion of curfew violation.
103 It is difficult for the patrolman to see anything wrong in stopping a "hippie" type youth where he would not stop a "straight" youth under the same circumstances. An experienced patrolman realizes that the possibility of a "hippie" type youngster possessing marijuana is much greater than a "straight" looking young person. Therefore, he feels that the efficient way to discover marijuana violations is to stop those likely to be committing them. The fact that the law does not always openly sanction the officer's experience as a basis for probable cause is another example wherein police feel that due process undercuts efficiency. See Packer, supra note 6.
104 The police officers interviewed made no attempt to hide their dislike of the long haired "hippie" type. There was a particular contempt for the older hippies (generally in their 20's) who the police believe introduce many high school age juveniles to drug use.
105 There were 28 instances of neighbors' complaints leading to apartment busts in the 658 adult arrest reports studied.
"6 Police, with probable cause to arrest or with a search warrant, can break into the premises, after they have announced who they are and their reason for being there, if they are refused admission or if there is no answer. Cal. Penal Code §§ 844, 1531 (West 1956).
107 People v. Padilla, 240 Cal. App. 2d 114, 49 Cal. Rptr. 340 (1966).
108 People v. Fisher, 184 Cal. App. 2d 308, 7 Cal. Rptr. 461 (1960).
109 People v. Mickelson, 59 Cal. 2d 448, 450, 380 P.2d 658, 660, 30 Cal. Rptr. 18, 20 (1963); People v. Currier, 232 Cal. App. 2d 103, 106, 42 Cal. Rptr. 562, 564 (1965); People v. Hilliard, 221 Cal. App. 2d 719, 723, 34 Cal. Rptr. 809, 811 (1963); People v. Ellsworth, 190 Cal. App. 2d 844, 846, 12 Cal. Rptr. 433, 435 (1961). See Note, Stop and Frisk in California, 18 Hastings L.1. 623, 625 (1967); Comment, Constitutional Limitations on Pre-Arrest Investigations, 15 U.C.L.A. L. Rev. 1031, 1031-46 (1968).
110 There were 72 adult arrests out of 658 studied where the individuals were stopped because of "suspicious circumstances."
111 See Comment, Constitutional Limitations on Pre-Arrest Investigations, supra note 109, at 1039 n.33, 1040 n.34.
112 But see id. at 1040 n.35.
113 People v. Machel, 234 Cal. App. 2d 37, 44 Cal. Rptr. 126, cert. denied, 382 U.S. 839 (1965). The court ruled that the circumstances surrounding the questioning and frisk of the defendant gave the police probable cause to believe he was in possession of marijuana. Those circumstances included the officer's knowledge that the defendant was a known narcotics user, the fact that the defendant came to the apartment where the officer had just arrested two other individuals for marijuana possession, the defendant's failure to answer when asked what was in his pocket, and the fact that he sweated profusely. It is unclear whether the mere feeling of a cigarette during a frisk, without the suspicious circumstances present in Machel, would give the police probable cause to reach inside the suspect's clothing.
114 Terry v. Ohio, 392 U.S. 1 (1968); Sibron v. New York, 392 U.S. 40 (1968); Peters v. New York, 392 U.S. 40 (1968).
115 Sibron v. New York, 390 U.S. 40,63-64 (1968). 115 Id. at 65.
117 For an exposition of both sides of this argument see Comment, Constitutional Limitations on Pre-Arrest Investigations, supra note 109, at 1047-48.
The Supreme Court has yet to decide the issue of the admissibility of evidence other than weapons found through a frisk. Peters raised the issue, but the Court dodged it by finding probable cause for arrest. 392 U.S. at 65.
118 Professor Joseph Goldstein of Yale divides police enforcement of any law into three levels: total enforcement, which occurs when the police successfully apprehend all violators; full enforcement, where the police actively follow every lead up to the full level of their authorization; and actual enforcement. Goldstein, supra note 53. Obviously total enforcement of the marijuana laws is impossible because of the extent of the problem and the legal boundaries placed on investigative techniques, such as search and seizure and interrogation. Interviews with police officials indicate a general consensus that actual marijuana enforcement operates at a level considerably below what Professor Goldstein would class asfull enforcement. This is the result of numerous factors such as manpower limitations and financial considerations, but apparently not from any reluctance to enforce the law.
113 See Homosexual Project, supra note 1, at 734.
120 FBN Interview, supra note 21; Warner Interview, supra note 17.
121 Cahn Interview, supra note 11.
122 Pettit Interview, supra note 11.
123 FBN Interview, supra note 21.
124 Barber Interview, supra note 44. Sergeant Barber indicated that less than one-third of those arrested through the efforts of a single undercover agent on the "buy" program are consistent pushers. The rest are only occasional sellers.
126 Barber Interview, supra note 44.
127 This feeling was particularly prevalent among police forces in smaller communities where a heroin problem is virtually nonexistent.
128 McKissick Interview, supra note 22.
126 Cal. Welf. & Inst'ns Code § 626 (West 1966).
130 Zappey Interview, supra note 36.
131 See text accompanying note 114, Part III infra.
132 Zappey Interview, supra note 36.
133 Despite the alleged antipathy of minority groups toward the police, the Los Angeles Police Department claims to get as many calls from Negro and Mexican-American parents as it does from White parents. Zappey Interview, supra note 36.
134 Pettit Interview, supra note 11.
135 The only area where heavy police patrolling is partially attributable to marijuana usage is in the Hollywood area. The usual cause for heavy police patrolling of a particular area is a high incidence of violent crime. Barber Interview, supra note 44.
136 Out of 738 arrests studied, Negroes and Mexican-Americans accounted for 402 (304 Negroes, 98 Mexican-Americans), a percentage far higher than their respective percentages of the Los Angeles County population.
137 See text accompanying notes 103-04 supra.
138 Barber Interview, supra note 44. 138 Id.