Attorney Chris McCabe's comments regarding the proposed new Rule Governing the Maine Medical Use of Marijuana Program
NOTE: Scroll down to view and download the Comments in multiple formats (Word, PDF, webpage).
|File Size:||403 kb|
|File Size:||205 kb|
Comments RE: Rule Governing the Maine Medical Use of Marijuana Program, 10-144 CODE OF MAINE RULES, Chapter 122, as proposed on May 24, 2017, by the State of Maine, Department of Health and Human Services, Maine Center for Disease Control and Prevention. To view the proposed rule and submit your own comments, visit: http://www.maine.gov/dhhs/mecdc/rules/maine-cdc-rules.shtml#anchor754500.
Date of Submission: June 25, 2017
Background & Capacities of Submission. These Comments are submitted by me, Christopher E. McCabe, Esq., a Maine small business owner and longtime Maine resident.
These Comments are submitted, first, in my capacity as Managing Partner of McCabe Law, LLC, a growing law firm with a statewide legal practice focusing on cannabis law, including small business law, regulatory compliance, real estate and property, municipal and government relations, intellectual property, and more. In that capacity, I am advocating in these Comments for all patients, small businesses, and medical providers in our industry equally. These Comments have the aim of creating a transparent, safe, legal, low-cost, low-obstacle sector of the economy.
Second, these Comments are submitted in my capacity as a citizen and full-time resident of the State of Maine. More specifically, I am advocating for my current and former home-communities of Greater Portland, Brunswick, Bowdoin College, Winslow-Waterville, and the Greater Millinocket & Katahdin Region.
I. SECTION-BY-SECTION COMMENTS
- Title edited to be consistent with Code of Maine Rules regulatory scheme (removed “s” from “Rules”).
- Title page more clearly identifies oversight agencies: “Department of Health and Human Services, Maine Center for Disease Control and Prevention.”
Table of Contents
- Significant edits that cleanup organization and reflect/mirror the changes proposed to the Rule.
- Deleted Section titles: Debilitating Medical Conditions (Section 3), Confidentiality (Section 9).
- Added Section titles: Cultivation of Marijuana for Medical Use (Section 3).
Comments on Purposes, Preemption, Enabling Statute
The two “Purposes” of this Rule:
- Safety: “to ensure patients have access to safe marijuana for medical use in the State of Maine.”
- To execute the enabling statute as directed by the Maine Legislature: “to carry out the provisions of the statute.”
With regard to medical marijuana in Maine, the enabling statute is the Maine Medical Use of Marijuana Act (the “Act”). The contents of the Act are determined by the Maine State Legislature (“Legislature”), which is made up of the Maine House and Senate, and is the branch of government that makes the law. As written and amended from time-to-time by the Legislature, with the exception of Maine judicial opinions effecting interpretation (the judicial branch interprets the law of Maine), the Act is the primary legal authority for all medical marijuana activities in Maine; provided, however, that the Maine Courts may interpret and effect the law.
This Rule is written by the Department of Health and Human Resources, Centers for Disease Control (“DHHS/CDC”), as overseen by Governor LePage. DHHS/CDC and Governor LePage are a part of the executive branch. This Rule is an agency rule that implements the Act. The executive branch executes and fulfills the law of Maine.
Under both Maine statutory and U.S. constitutional law, this Rule must strictly implement the Act as directed by the Legislature in the Act. Because the Act is the controlling law on medical marijuana in Maine, it “preempts” any and all agency rules, including this Rule. Where the Act and this Rule are in conflict, the Act controls the law.
Moreover, DHHS/CDC cannot go beyond the powers granted to it by the Legislature. When an executive agency acts without legislative authority, the act is “Ultra Vires,” i.e. beyond the powers of the executive branch. Regulations that are Ultra Vires are unconstitutional. Thus, actions taken by DHHS/CDC that exceed the scope of power given to them by the Act are unconstitutional. By law, every aspect of this Rule must be authorized the Act.
Section 1. Definitions
Notable proposed definitions:
- “‘Bona Fide Medical Provider-Patient Relationship’ means a relationship in which the treating medical provider has ongoing responsibility for the assessment, care, and treatment of a qualifying patient’s debilitating medical condition with respect to the medical use of marijuana."
- “‘On-Site Assessment’ means the review process to determine compliance. An on-site assessment may include a paper review, interview and inspection of the medical marijuana cultivation, processing and retail sites and administrative locations for the purpose of ensuring compliance with the requirements of statute and this rule.”
- “‘Smoking’ means inhaling, exhaling, burning or carrying a lighted or heated cigarette, cigar, pipe, weed, plant, marijuana, regulated narcotic or other combustible substance. Unless stated otherwise, smoking includes electronic smoking devices.”
- “‘Vaporize’ means the use of an electronic smoking device to transform marijuana for medical use into vapor or aerosol for the purpose of inhalation.”
Regarding “On-Site Assessments” for “compliance":
The On-Site Assessments are unconstitutional violations of the Fourth, Fifth, Sixth, and Ninth Amendments, as applied to state action by the Fourteenth Amendment. The power to give “evidence” (statements and samples) gathered during assessments directly to criminal law enforcement makes DHHS an “agent” of law enforcement. In this way, DHHS is doing the Activities of the police in an illegal way.
First, the On-Site Assessments are a violation of the Fourth Amendment. DHHS is conducting police activities without authority, without a Warrant, without “probable cause” that a crime has been committed, and without an exception to the Warrant Requirement. Conducting interviews and taking samples as a part of a civil compliance assessment with the ability to refer evidence (statements, observations, tests, tangible physical evidence such as documents and photographs) directly to criminal law enforcement officers is a violation of Fourth Amendment.
Regarding “Smoking” and “Vaporize”:
Vaporization, by definition, does not include combustion, which means “to burn.” See https://www.merriam-webster.com/dictionary/vaporize, https://www.merriam-webster.com/dictionary/combust. The negative safety concerns with vaporization are non-existent. One of the stated Purposes of this Rule is to provide safe access (of course, without infringing on the rights of others). In the context of vaporization, there are no harmful effects on third parties. Thus, it should not be regulated like smoking. Rather, vaporizing should be regulated like edibles, tinctures, oils, and other non-combustible cannabis delivery methods.
Good cleanup of text and organization of sections. Necessary removal of the following duplicative definitions (to eliminate duplication and inconsistency with the Act).
- “Disqualifying Drug Offense”
- “Enclosed, Locked Facility and Enclosed Outdoor Area”
- “Final Agency Action”
- “Food Establishment”
- “Intractable Pain”
- “Mature Marijuana Plant”
- “Prepared Marijuana”
- “Physicians Written Certification”
- “Prepared Marijuana, Qualified Patient”
- “Registered Dispensary”
- “Registered Patient”
- “Registered Primary Caregiver”
- “Registry Identification Card”
- “Tamper-Resistant Paper”
Section 2. Scope and Protected Conduct
Opposed AdditionsImmediate Criminal Prosecution for a First-time, Minor, Compliance Error
Added, in Section 2(A), Protections: legal medical use of marijuana:
“To receive protection for conduct authorized by this rule and the statute, individuals must comply with applicable provisions of rule and statute, including possessing required documents as proof of authorized conduct. Protections do not extend to the use or possession of marijuana by individuals who are non-compliant with regulations or who are otherwise not authorized under this rule and the statute to possess, cultivate, transport, furnish or administer marijuana for medical use.”
Section 2(A)’s Unconstitutional Violations and Risks
This Section contains numerous violations of the United States Constitution. The constitutional violations include:
1. Ultra Vires, beyond the authority granted by the Act. Nowhere does the Act require absolute compliance to receive protection.
2. Under the Fourth Amendment, The Right to be Free of Unreasonable Search and Seizures. With the ability to provide evidence to police for criminal prosecution, a minor noncompliance destroys all civil protections of the law. Under the Fourth Amendment, a reasonable search and seizure is conducted with a valid Warrant based on Probable Cause.
3.Under the Fifth Amendment, The Right to Remain Silent.
4.Under the Sixth Amendment, The Right to the Counsel of an Attorney.
This Section unnecessarily and unreasonably deletes a number of important provisions.
Deleting the following provision destroys constitutional protections of patients, caregivers, and dispensaries: the “Right to not be denied any right or privilege or be subjected to arrest, prosecution, penalty or disciplinary action.”
Deleting the following provision legalizes discrimination against students, employees, and tenants: “A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person's status as a qualifying patient or primary caregiver.” This provision is a violation of the Purposes of safety and Act implementation.
Deleting the following provision legalizes discrimination against parents fighting for custody: “person may not be denied parental rights and responsibilities or contact with a minor child.”
Deleting the following provision destroys protection against illegal seizure of marijuana without a Warrant and not based on Probable Cause: “Except when necessary for an ongoing criminal or civil investigation, a law enforcement officer may not seize marijuana that is in the possession of a qualifying patient, primary caregiver or registered dispensary as authorized by these rules.”
Deleting the following provision destroys protection against illegal seizure of marijuana without a Warrant and not based on Probable Cause: “Notwithstanding the provisions of Title 14 Maine Revised Statutes, chapter 741, if the law enforcement officer fails to comply with Section 2.5 by returning marijuana possessed in violation of these rules, the owner of the marijuana may file a claim in the District Court in the district where the owner lives, or where the law enforcement officer is employed. See 22 M.R.S.A. §2423-E (4).”
Horrible Hypotheticals of “Non-Compliance”:
If all non-compliance can lead to referral to law enforcement, this Rule hardly provides any legitimate protection at all. Examples of “non-compliance” that would allow criminal prosecution under this Rule:
- 5’11” outdoor fence;
- renewal paperwork submitted 1-day late due to a death in the family;
- cancer patient-caregiver shares bathroom (“common space” in the same building) with another caregiver.
In Section 2(B), Lawful disposal of excess prepared marijuana for medical use. Only dispensaries can sell excess, all others must donate for no compensation of any sort in return. Oppositional comments:
- encourages diversion to the black market;
- dispensaries are not the only marijuana provider with “inventory interruptions”: caregivers and patients should not be treated as less important than dispensaries;
- raises the price of legal medical marijuana for indigent patients;
- creates oligopoly of dispensaries.
Ability to refer “evidence” and “statements” to “law enforcement” constitutes violations of 4th, 5th, & 6th, with DHHS/CDC acting as an agent of law enforcement. No warrant, no reading of rights, no counsel. Unconstitutionally vague as to what constitutes “non-compliant.”
This Rule should provide greater definition of “enclosed, locked facility” including: “Security”; “Fence”; “Locks.”
Section 3. Cultivation of Marijuana for Medical Use
Section 3(A) states that patients and caregivers “may not cultivate in a location not approved by the Department.” It further limits outdoor cultivation to 36 mature plants.
- Disclosure of locations violates rights of privacy for patients.
- Too onerous for seedlings (no limit).
- The requirement of a “permanent location” is not based on any legitimate safety concern.
Section 3(B), Security, calls for “appropriate” security measures for “discourage theft of marijuana, ensure safety and prevent unauthorized entrance” but:
- No provision for the safeguarding of cash in an almost-all-cash business
- Lack of protection for banking
Section 3(C) calls for “record of entry” and “sign-in” of all persons “authorized to enter the cultivation site” and collection of Maine identification information.
- What does “site” mean?
- Non-Disclosure & Confidentiality Agreements, the private right to contract, will cause issues.
- What if an electrician is based out-of-state but fully licensed here?
Section 4. Medical Provider Written Certification
Section 4(A) states that a provider must give “professional opinion that the qualifying patient is likely to receive therapeutic benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition.”
Section 4(F) states that “bona fide medical provider-patient relationship” must contain, among other things: an “[i]n-person encounter,” at a “permanent” and “clinically appropriate” location.
- The requirement of a “permanent location” is not based on any legitimate safety concern.
- The requirement of an “in-person encounter” is not based on any legitimate safety concern.
- The lack of definition of “clinically appropriate” will cause this requirement to be ineffective and highly subjective. The appropriateness of the clinic for a particular patient should be determined by the patient in consultation with the patient’s medical provider.
Section 4(A)(3) is non-existent.
Section 5. Qualifying Patient
Section 5(E) makes clear that a visiting patient may not cultivate.
Section 5(H) “Patient Rescinds Designation”: “The registered patient may change his or her designated registered dispensary or primary caregiver at any time by notifying the registered dispensary or primary caregiver of the change.”
Section 5(H) clarifies the process for termination of designations, asserts the right of both patients and caregivers to terminate the designation at anytime, and proscribes the method for replacing or rotating patients in a legal manner. Under this Section, designations do not contain a durational requirement. This Right to Choose satisfies the Purpose of this Rule and the Act of improving patient safety in situations where the designation is perceived by either party to be unsafe. Moreover, the Right to Choose satisfies the Purpose of this Rule to execute the Act as directed by the Legislature, which did not impose any sort of time-based requirement on the patient-caregiver relationship.
Section 5(A) Violates the Constitution and Creates Unreasonable Risk for Patients, Caregivers, and Dispensaries
This Section contains numerous violations of the United States Constitution. By threatening caregivers with immediate criminal prosecution for even a first-time, minor, unknowing misunderstanding of the law, this Section is Ultra Vires and unconstitutional under the Fourth, Fifth, Sixth, and Ninth Amendments, as applied to DHHS/CDC by the Fourteenth Amendment.
Section 6. Primary Caregiver
Section 6(A) clarifies caregivers must pay taxes and maintain appropriate records. Section 6(A)(1) clarifies that designation of a Visiting Patient counts toward a patient slot. Section 6(A)(2) clarifies that a patient is limited to purchasing 2.5 ounces of medical marijuana every 15 days. Section 6(B) requires caregivers file an “annual report” of the “total number of patients” served, a.k.a. the “unique count,” date of designation, and patient's’ unique identification number. Section 6(G) requires caregivers to maintain employee “personnel files” that contain: documentation of background checks, job description or employment contract; I-9; copy of registry identification card; and copy of Maine identification.
Consistency of terminology.
Section 6(D) states that a patient may “rescind the designation” at any time. Section 6(E) states that a caregiver may “accept, refuse or discontinue” the designation at anytime. The terminology used for terminating the patient-caregiver relationship should be consistent.
Section 6(A)(3) should allow caregivers to buy and sell excess marijuana. The transaction causes expenditure of time and resources. The secondary market would create the efficient distribution of resources. A safe, well-regulated secondary market for medical marijuana would lower the price for patients and would significantly reduce diversion to the black market. This would help improve patient access to safe marijuana, thus fulfilling a purpose of this Rule and the Act.
Section 6(F)(2) requires a caregiver to “return the designation card to the qualifying patient the same day the caregiver signs and dates the form.”
- This is an unnecessary and inflexible requirement that will lead to unjust results.
Section 6(J) states that caregiver who prepares “goods” including “tinctures” must get a food establishment license from the Department of Agriculture, Conservation and Forestry and, further, “must comply with regulations applicable to food establishments.”
- This requirement is biased against caregivers because dispensaries are not likewise required to “comply with regulations applicable to food establishments.”
- This requirement is overly broad and lacks proper definition.
- Yet another burdensome requirement on a population of small business owners who are confined to five patient designations and a limited plant count.
- Tinctures and other basic, common combinations should not be included.
Irrational, Unreasonable, Illegal Definition of “Collective”
Section 6(K) improperly states that, regardless of whether marijuana is present, if any “common area in a building” is utilized by two or more caregivers, a “collective” is created. According to this provision, sharing a bathroom, garage, shed, or other innocuous space or area would be a violation of the Rule and could lead to criminal prosecution.
- Irrational and unreasonable.
- Even if the area contains only “supplies” (e.g. a hammer) or “accessories” (e.g. a computer in an office, a car in a garage, HVAC, water), or “materials,” caregivers may not share it under these new rules. This is gigantic violation of the right of economic liberty.
- The restriction includes “all activities related” to marijuana, which would include an infinite amount of activities and common spaces.
- Redundant and undefined terms: “common area”; “building”; “separate, self-contained, locked and secured locations” that are “enclosed on all sides and function independently.”
- Potential constitutional challenges: takings clause, 9th and 14th right of economic liberty.
- Ultra Vires: beyond the scope of the enabling Act.
- “Separate” locations is confusing and unnecessary.
- Overly-broad restriction not based in any legitimate safety concerns.
As to Building Owners, Section 5(K) Violates Due Process, Ultra Vires, Economic Liberty, and the Takings Clause of the Constitution
This Section also contains numerous violations of the Constitution as to building owners. By cutting off a building owner’s right to be a medical marijuana caregiver when that building owner separately rents space to a caregiver, this Rule violates Due Process because the building owner did not receive a fair procedural or substantive process.
Moreover, this Rule violates a building owner’s Right of Economic Liberty and constitutes a Taking under the Constitution because the Rule unjustly and without compensation takes away established economic opportunity and property value from all building owners who rent to caregivers, of which there are thousands.
In addition, this Rule is Ultra Vires as to building owners. The Rule reaches far beyond the scope of legislative authority by regulating the transferability of real estate, which is not anywhere contemplated by the Act.
Section 7. Registered Dispensary
Regarding excess marijuana in Section 7(A)(1), why not make it transferable between dispensaries and caregivers for value? A safe, well-regulated secondary market for medical marijuana would lower the price for patients and would significantly reduce diversion to the black market. This would help improve patient access to safe marijuana, thus fulfilling a purpose of this Rule and the Act.
Regarding the dispensary requirements in Sections 7(K)-(U), similar provisions should be incorporated as “best practices” or “recommended procedures” for caregivers as well. This would help improve patient access to safe marijuana and implement the Act as directed by the Legislature.
Regarding the references to distance in Section 7(V)(6), in order to avoid costly litigation and provide needed clarity, additional definition should be given to measurements: how, exactly, distance is measured? Is distance measured “as the crow flies”? Further, where does the measurement begin and end? That is, are the edges of the measurement property lines, building foundations, or other markers?
With regard to Section 7(A)(2), in contrast caregivers, dispensaries are not under threat of criminal prosecution for mere minor noncompliance. In the case of compliance assessments of dispensaries, DHHS/CDC is not allowed to refer evidence and statements to police. Unlike caregivers, dispensaries are not subject to a unilateral, unstandardized referral by DHHS/CDC to law enforcement for criminal prosecution. This difference in enforcement and prosecution is wholly unfair and arbitrary. As stated elsewhere in these Comments, the On-Site Assessments of caregivers conducted by DHHS/CDC are unconstitutional under the Fourth, Fifth, Sixth, and Ninth Amendments, as applied to state action by the Fourteenth Amendment. The Assessments are clear violations of caregivers’ constitutional rights.
Instead of potential criminal prosecution, Section 7(I)(3) provides that, unlike caregivers and patients, dispensaries are assured to receive only an administrative violation for non-compliance. This provision should be mirrored for caregivers and patients.
With regard to food safety, Section 7(B) provides that, unlike caregivers, need not comply with “all food establishment” regulations. This difference in enforcement and prosecution is wholly unfair and arbitrary.
In Section 7(V)(4), why do dispensaries receive a reduction in license fees, but caregivers and patients do not?
Section 8. Fees
Nothing of note not already stated.
Section 9. Registry Identification Card
Section 9(B)(4) requires every patient to disclose the “location of the patient’s cultivation area.” DHHS/CDC’s collection of such cultivation location information is a violation of the Act’s guarantee of patents’ right of privacy.
With regard to Sections 9(H)(5) and 9(J), in contrast caregivers, patients are not under threat of criminal prosecution for mere minor noncompliance. In the case of compliance assessments of patients, DHHS/CDC is not allowed to refer evidence and statements to police. Unlike caregivers, patients are not subject to a unilateral, unstandardized referral by DHHS/CDC to law enforcement for criminal prosecution. This difference in enforcement and prosecution is wholly unfair and arbitrary. As stated elsewhere in these Comments, the On-Site Assessments of caregivers conducted by DHHS/CDC are unconstitutional under the Fourth, Fifth, Sixth, and Ninth Amendments, as applied to state action by the Fourteenth Amendment. The Assessments are clear violations of caregivers’ constitutional rights.
Section 10. Compliance and Enforcement
Significant & Numerous Violations of the U.S. Constitution
This Section contains numerous violations of the United States Constitution. The constitutional violations include:
1.Ultra Vires, beyond the authority granted by the Act.
2.Under the Fourth Amendment, The Right to be Free of Unreasonable Search and Seizures. Under the Fourth Amendment, a reasonable search and seizure is conducted with a valid Warrant based on Probable Cause.
3.Under the Fifth Amendment, The Right to Remain Silent.
4.Under the Sixth Amendment, The Right to the Counsel of an Attorney.
In this Section, DHHS/CDC alleges to have the power to give evidence obtained during an On-Site Assessment of caregivers (but not dispensaries or patients) to police for criminal prosecution. This difference in enforcement and prosecution regulation of caregivers as compared to dispensaries is wholly unfair, arbitrary, unauthorized, and unconstitutional. Moreover, such a unilateral, unstandardized referral by DHHS/CDC to law enforcement for criminal prosecution is illegal and unconstitutional in many ways.
DHHS/CDC is acting beyond its powers. Nowhere in the Act does the Legislature allow DHHS/CDC to act as an agent of law enforcement. By acting outside the scope of its legislatively-directed authority, DHHS/CDC’s actions are unconstitutionally Ultra Vires.
Fourth, Fifth, Sixth, Ninth, Fourteenth Amendments
If DHHS/CDC has the power to search and seize evidence, DHHS/CDC is acting as an agent for law enforcement. The power to search and seize evidence is a power that is reserved for criminal, not civil, law enforcement. By threatening caregivers with immediate criminal prosecution for even a first-time, minor, unknowing misunderstanding of the law, the On-Site Assessments are unconstitutional under the Fourth, Fifth, Sixth, and Ninth Amendments, as applied to DHHS/CDC by the Fourteenth Amendment.
Lack of Fraud Protection
The practical effect of Section 10(B) is a complete lack of protection against fraudulent complaints and reports. The Section provides no disincentive to lying in an industry that contains intense competition and jealousy.
Section 11. Inpatient Hospice and Nursing FacilitiesNo comments.
II. LEGAL RESOURCES, CITATIONS, ANALYSIS
The Cole Memorandum: Federal Enforcement Priorities and Mainer Prosecution
On August 29, 2013, the U.S. Department of Justice, Office of the Deputy Attorney General, issued a memorandum (the “Cole Memo”) that updated legal guidance on medical marijuana in light of the state ballot initiatives that had recently legalized under state law the possession of small amounts of marijuana and provided for the regulation of marijuana production, processing, and sale.
The Cole Memo provides eight “enforcement priorities”:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
The enforcement priorities must be sufficiently satisfied by Maine law. In other words, Maine’s statutes and rules must properly tackle the issues that the federal government, as embodied by the Cole Memo, has deemed to be of highest priority. If Maine’s statutes and rules do not sufficiently satisfy the enforcement priorities, hundreds of thousands of Mainers will face the direct threat of federal investigation and prosecution. If Maine does not sufficiently address the enforcement priorities, Mainers who could be prosecuted include: more than 50,000 patients; more than 3,000 caregivers and their employees; hundreds of employees and owners of the 8 dispensaries; as well as anyone and everyone who has assisted (aided and abetted) those individuals, including attorneys, accountants, electricians, landlords, bankers, realtors, and gardening supply store, to name a few, will face greatly increased risk of federal investigation and prosecution.
In addition, the Cole Memo says, “in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the [Justice] Department’s enforcement priorities…”
Source of Constitutional Analysis
Unless otherwise footnoted, the source the below quoted text is the Legal Information Institute (“LII”) of Cornell Law School, cite: https://www.law.cornell.edu/. The LII “publishes electronic versions of core materials in numerous areas of the law, primarily on the Web. They range from the Constitution to the U.S. Code, from Supreme Court decisions to the Code of Federal Regulations as well as the Federal Rules of Civil Procedure, Bankruptcy Procedure, and Criminal Procedure. We maintain this Internet site and its many resources, which include legal commentary and explanations contained in our WEX legal dictionary and encyclopedia, and the LII Supreme Court Bulletin, which provides analysis of cases that are about to be argued before the Supreme Court. Last year, those services were used by more than 32 million unique individuals in 246 countries and territories.”
Fourth AmendmentTextThe text of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Interests Protected: Right to be Free from Unreasonable Search and Seizures, Arbitrary Arrests
The Fourth Amendment “protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.”
Defining “Search” and “Seizure”“The courts must determine what constitutes a search or seizure under the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, the individual will not enjoy protection under Fourth Amendment.”
“Search”: A search “occurs when a governmental employee or agent of the government violates an individual's reasonable expectation of privacy.”
“Seizure of Person”: “A seizure of a person, within the meaning of the Fourth Amendment, occurs when the government’s conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the government presence and leave at his will.”
Investigatory assessments “must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.”
“Seizure of Property”: “occurs when there is some meaningful interference with an individual’s possessory interests in the property.”
Comment about DHHS/CDC’s Illegal Acts
As a part of the Maine’s executive branch, DHHS an administrative agency and not a lawmaking or legislating body. DHHS does not determine what is an illegal search and seizure. By collecting evidence during its On-Site Assessments and forwarding it directly to criminal prosecutors, DHHS/CDC is conducting an illegal search and seizure under the Fourth Amendment.
“A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.”
“To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified. A court-authority, usually a magistrate, will consider the totality of circumstances to determine whether to issue the warrant.”
“All searches and seizures under Fourth Amendment must be reasonable.” “Reasonableness is the ultimate measure of the constitutionality of a search or seizure.”
“Searches and seizures with the warrant must also satisfy the reasonableness requirement.”
Violating Search and Seizure
Search and seizure is illegal when it is “unreasonable,” which occurs when there is a search and seizure “by a law enforcement officer” or an “agent” of law enforcement officers “without a search warrant and without probable cause to believe that evidence of a crime is present.”
“Such a search or seizure is unconstitutional under the Fourth Amendment (applied to the states by the Fourteenth Amendment), and evidence obtained from the unlawful search may not be introduced in court.”
The Supreme Court & the Fourth Amendment
United States v. Jacobsen, 466 U.S. 109, 113-114 (1984), in which Justice Stevens delivered the opinion of the Court, stating that the Fourth Amendment, “protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. . . . sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable. Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package. Such a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered.”
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
“Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: 1) right to indictment by the grand jury before any criminal charges for felonious crimes, 2) a prohibition on double jeopardy, 3) a right against forced self-incrimination, 4) a guarantee that all criminal defendants have a fair trial, and 5) a guarantee that government cannot seize private property without making a due compensation at the market value of the property.”
Right Against Forced Self-Incrimination
“The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.”
“In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom.” 384 U.S. 436 (1966).
“If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violating the Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events.”
“To be self-incriminating, the compelled answers must pose a “substantial and real,” and not merely a “trifling or imaginary hazard” of criminal prosecution.”
Right Against Property Takings
The Fifth Amendment “requires the government to pay "just compensation" when taking property for public use. This requirement applies to the states as well as the federal government.”
“Many types of government action infringe on private property rights. Accordingly, the Fifth Amendment's compensation requirement is not limited to government seizures of real property. Instead, it extends to all kinds of tangible and intangible property, including but not limited to easements, personal property, contract rights, and trade secrets.
The Fifth Amendment's just compensation rule applies not only to outright government seizures of private property, but also to some government regulations. "Property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.” United States v. Dickinson, 331 U.S. 745 (1947). It is not always clear which regulations constitute takings, and why. The government absolutely must compensate property owners for regulations requiring a physical invasion of private property, even if it is a small invasion.”
Right of Due Process
“The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures.”
“The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting.”
“Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away.”
Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court's preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures.
Three factors as stated by the Supreme Court:
- “First, the private interest that will be affected by the official action;
- Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
- Finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
“The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you. It has been most visibly tested in a series of cases involving terrorism, but much more often figures in cases that involve (for example) jury selection or the protection of witnesses, including victims of sex crimes as well as witnesses in need of protection from retaliation.”
Right to A Lawyer
“The right to be represented by counsel is by far the most pervasive for it affects [an accused person’s] ability to assert any other rights he may have.” United States v. Cronic, 466 U.S. 648, 654 (1984).
An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases "are necessities, not luxuries." Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to a trial itself would be "of little avail," as this Court has recognized repeatedly.
Ninth & Fourteenth Amendments
Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Fourteenth Amendment (part): “…No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…”
Interests Protected: Economic Liberty & Protection from State Action
“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.”
"I define economic liberty as the right to acquire, use, and possess private property and the right to enter into private contracts of one’s choosing. If the Constitution protects these rights, then the Constitution does protect economic liberty. The evidence that the Constitution protects rights of private property and contract is overwhelming."
The State Action Clause of the Fourteenth Amendment declares that a state cannot make any law that abridges the privileges or immunities of any citizen.
The Due Process Clause guarantees fairness to all individuals. The Supreme Court has tended to define liberty rather broadly and found its base in the Constitution; some of the basic liberties found by the Court include the freedom to travel, freedom from incarceration, freedom from physical violence and forced medical procedures, and freedom to live with and raise children.
 Unless otherwise footnoted, all direct quotations are cited to Legal Information Institute, Cornell Law School, “Constitution: Fourth Amendment,” https://www.law.cornell.edu/constitution/fourth_amendment.
 See Marijuana Policy Project’s website: https://www.mpp.org/issues/medical-marijuana/state-by-state-medical-marijuana-laws/medical-marijuana-patient-numbers/
 Legal Information Institute, Cornell Law School, “Constitution: Fourth Amendment,” https://www.law.cornell.edu/constitution/fourth_amendment
 See Illinois v. Andreas, 463 U. S. 765, 463 U. S. 771 (1983); United States v. Knotts, 460 U. S. 276, 460 U. S. 280-281 (1983); Smith v. Maryland, 442 U. S. 735, 442 U. S. 739-741 (1979); Terry v. Ohio, 392 U. S. 1, 392 U. S. 9 (1968).
 See United States v. Place, 462 U. S. 696 (1983); id. at 462 U. S. 716 (BRENNAN, J., concurring in result); Texas v. Brown, 460 U. S. 730, 460 U. S. 747-748 (1983) (STEVENS, J., concurring in judgment); see also United States v. Chadwick, 433 U. S. 1, 433 U. S. 13-14, n. 8 (1977); Hale v. Henkel, 201 U. S. 43, 201 U. S. 76 (1906). While the concept of a "seizure" of property is not much discussed in our cases, this definition follows from our oft-repeated definition of the "seizure" of a person within the meaning of the Fourth Amendment -- meaningful interference, however brief, with an individual's freedom of movement. See Michigan v. Summers, 452 U. S. 692, 452 U. S. 696 (1981); Reid v. Georgia, 448 U. S. 438, 448 U. S. 440, n. (1980) (per curiam); United States v. Mendenhall, 446 U. S. 544, 446 U. S. 551-554 (1980) (opinion of Stewart, J.); Brown v. Texas, 443 U. S. 47, 443 U. S. 50 (1979); United States v. Brignoni-Ponce, 422 U. S. 873, 422 U. S. 878 (1975); Cupp v. Murphy,412 U. S. 291, 412 U. S. 294-295 (1973); Davis v. Mississippi, 394 U. S. 721, 394 U. S. 726-727 (1969); Terry v. Ohio, 392 U.S. at392 U. S. 16, 392 U. S. 19, n. 16.
 United States v. Chadwick, 433 U. S. 1, 433 U. S. 10 (1977); United States v. Van Leeuwen, 397 U. S. 249, 397 U. S. 251 (1970); Ex parte Jackson, 96 U. S. 727, 96 U. S. 733 (1878); see also Walter, 447 U.S. at 447 U. S. 654-655 (opinion of STEVENS, J.).
 See, e.g., United States v. Place, 462 U.S. at 462 U. S. 701; United States v. Ross, 456 U. S. 798, 456 U. S. 809-812 (1982); Robbins v. California, 453 U. S. 420, 453 U. S. 426 (1981) (plurality opinion); Arkansas v. Sanders, 442 U. S. 753, 442 U. S. 762 (1979); United States v. Chadwick, 433 U.S. at 433 U. S. 13, and n. 8; United States v. Van Leeuwen, supra. There is, of course, a well-recognized exception for customs searches; but that exception is not involved in this case.
 See Whiteley v. Warden, 401 U. S. 560, 401 U. S. 567, n. 11 (1971); Wong Sun v. United States, 371 U. S. 471, 371 U. S. 484 (1963); Rios v. United States, 364 U. S. 253, 364 U. S. 261-262 (1960); Henry v. United States, 361 U. S. 98, 361 U. S. 103 (1959); Miller v. United States, 357 U. S. 301, 357 U. S. 312 (1958); United States v. Di Re, 332 U. S. 581, 332 U. S. 595 (1948); Byars v. United States, 273 U. S. 28, 273 U. S. 29 (1927).
 "That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law." Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 344 (1963).
 Time has not eroded the force of Justice Sutherland's opinion for the Court in Powell v. Alabama, 287 U. S. 45 (1932): "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." Id. at 287 U. S. 68-69.
 See United States v. Ash, 413 U. S. 300, 413 U. S. 307-308 (1973); Argersinger v. Hamlin, 407 U. S. 25, 407 U. S. 31-32 (1972); Gideon v. Wainwright, 372 U.S. at372 U. S. 343-345; Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462-463 (1938); Powell v. Alabama, 287 U.S. at 287 U. S. 68-69.
 381 U.S. 479, 488, 491, 492 (1965). Chief Justice Warren and Justice Brennan joined this opinion. Justices Harlan and White concurred id. at 499, 502, without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute “violates basic values implicit in the concept of ordered liberty,” (citing Palko v. Connecticut,302 U.S. 319, 325 (1937) ). Id. at 500. It would appear that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former’s express rejection of this ground. Id. at 481–82. Justices Black and Stewart dissented. Justice Black viewed the Ninth Amendment ground as essentially a variation of the due process argument under which Justices claimed the right to void legislation as irrational, unreasonable, or offensive, without finding any violation of an express constitutional provision.
 Randy E. Barnett, "Does the Constitution Protect Economic Liberty?," Harvard Journal of Law & Public Policy (2012).