Wednesday, October 7, 2015

Reverse Drug Stings: One Way the Idaho Law Enforcement Community is Capitalizing on Legalization of Recreational Marijuana in Oregon and Washington

Although two contiguous states, Washington in 2012 and Oregon in 2015, have legalized recreational marijuana it is still very much illegal, and prosecuted aggressively, in Idaho.  For example an individual in Ontario, Oregon can possess up to eight (8) ounces of recreational marijuana for personal use whereas possession of three (3) ounces or more just across the Snake River would subject the same individual  to a felony arrest and prosecution and up to five (5)  years in prison and a $10,000.00 fine.

Further depending on the actual amount possessed or the how the marijuana is packaged, could expose the individual in Idaho to much larger fines, longer prison sentences and mandatory minimum prison sentences for delivery, intent to deliver or marijuana trafficking.

The Idaho State Police, county sheriffs and prosecutors, city attorneys and police chiefs in Idaho are sworn to uphold Idaho law, however, they have discretion on arresting and making recommendations on sentencing.  For example Payette County Sheriff, Chad Huff, recently stated he has given his officers discretion to cite and not arrest those found with small amounts of marijuana and many of those end up with a $250 fine and no probation.  This begs the question, however, what is law enforcement doing to stem the flow of marijuana into Idaho and what other techniques are they using to enforce Idaho laws and pay for additional enforcement, prosecution and incarceration.  One possible answer, REVERSE DRUG STINGS.

Recently I have seen in my criminal defense practice, and I have heard similar anecdotal evidence from my colleagues, an uptick in so called "reverse drug sting" operations.  These operations are termed "reverse" as it is the undercover officer or the confidential informant that offers not to buy a controlled substance, but to sell it.  What was once considered clear entrapment by law enforcement and an unheard of law enforcement technique, became sporadically used by the DEA in the 1970's and 1980's to cripple large drug trafficking organizations by confiscating and obtaining forfeiture of drug buy money. 

State, county and city law enforcement agencies soon learned that they too could fill their coffers with these reverse sting forfeited monies.  The focus turned not just to large drug operations but to low level street dealers and even to small level drug users.  In the digital age undercover officers are now trolling Facebook and other social medicia cites to find possible interested purchasers to Friend and gain trust which eventually leads to the officer offering to sell, usually a trafficking amount (a pound or more in Idaho), of marijuana at a below market price.  When the unsuspecting purchaser shows up with the funds at the meet, he is arrested and the funds are seized. 

Such operations have received wide spread criticism as they often reward confidential informants with handsome pay days, encourage unscrupulous law enforcement behavior and attract a criminal element to a small cities and counties.  Further the criticism levied is that the operations now are often focused on young, low cognitive functioning, addicted or mentally ill individuals into committing crimes they otherwise would not commit.  

The Idaho law enforcement community seems to recognize that the number of purchasers is growing in and around Idaho and as such are confiscating tens of thousands, if not hundreds of thousands or dollars, from Idaho citizens and citizens of other states drawn into Idaho.  This issue will play out over the next few years in the Idaho courts and in the court of public opinion, but these "reverse stings" are very much a slippery slope.