"SNIFF AND GRAB"

Context:

The Washington Supreme Court recently ruled that it's illegal for police to
gather information on an individual's electric usage without a warrant.

Knock and talk is used mostly for marijuana investigations, but similar
techniques are used in other cases. For example, officers routinely stop
people on the street and, if they look suspicious, sometimes ask for
consent to search them.

According to the Drugs and Vice Division's 1996 Annual Report, "That
marijuana production is being conducted by such a cross section of
supposedly respectable citizens is an indication that marijuana enforcement
has been too long neglected."

SNIFF and GRAB

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

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

Illustration: STAN SHAW

Defense lawyers say it's about time.

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

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

Their argument isn't that the cops are unprofessional cowboys who routinely
break the law to make busts. Quite the contrary: Many members of the
defense bar say the pot squad's officers are among the most professional on
the entire force. Instead, the loudest complaint is that, thanks to
ingenious police tactics and the peculiarities of the pot-growing business,
the task force has it too easy--something the Drugs and Vice Division's
annual report confirms.

"Growers in this region present a target rich environment and are there for
the taking as fast as the task force can get to them," the most recent
report reads. In 1996, the most recent year for which statistics are
available, the Drugs and Vice Division seized a whopping 14,425 marijuana
plants.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"The controversy here is that a large segment of the population is very
ambivalent about marijuana in general," says McDonnell. "The problem is:
It's illegal to grow pot. That's a legislative decision. Critics are asking
us to ignore the decision of the legislature, but it's our responsibility
to carry out the law."