A sign to the offices of the Lower Brule Sioux Tribe in South Dakota. Photo from USGS / Flickr
A member of the Lower Brule Sioux Tribe of South Dakota who was convicted of possessing synthetic marijuana lost an appeal on Friday. In July 2012, tribal officers seized eighty grams of synthetic marijuana from a business that doubled as the residence of Jason Long. Drugs were also found in his car and a second visit in August resulted in the seizure of Long's property. Long subsequently pleaded guilty to one count of possession with intent to distribute a controlled substance. But he reserved his right to challenge the searches on the grounds that they violated his rights under the Fourth Amendment to the U.S. Constitution. By a 2-1 vote, a three-judge panel 8th Circuit Court of Appeals said both searches were legal. The July search was conducted pursuant to a valid tribal court warrant, the majority said, and the August search was authorized by the owner of the property being used by Long.
Indianz.Com SoundCloud: 8th Circuit Oral Arguments in US v. Long
But a member of the panel who has been sympathetic to Indian defendants disputed the legality of the July search, which resulted in the most damning evidence against Long. Judge Myron Bright said the tribal officer who entered the business -- which was known as the OC Store -- did so without basis. "The facts presented at the suppression hearing plainly meet the preponderance of the evidence standard showing that it was 'more probably true and accurate' that the OC Store was closed and, therefore, Long had a subjective expectation of privacy," Bright wrote. Officer Shane Spargur entered the OC Store at about 4:30am in the morning and there was no indication it was open for business, Bright noted. So anything he saw -- which included a package that was believed to contain synthetic marijuana -- should not have been used as the basis for the tribal court search warrant, the judge concluded. "Officer Spargur’s conduct was 'clearly illegal' because Long possessed an expectation of privacy in his business when it was closed to the public," Bright said.
A package of synthetic marijuana, marketed as "Spice." Photo from US Marine Corps / Wikipedia
The majority, however, swept aside those concerns and found that Spargur acted reasonably. The court said Long failed to prove that the OC Store was closed at such an early hour of the morning. The court also dismissed concerns about the search warrant issued by tribal Judge Lorri Miner. Long questioned why she granted it over the telephone and said she was biased by her advocacy regarding substance abuse on the reservation. According to Long, Miner pushed the council to enact legislation that outlawed synthetic marijuana and she frequently ordered defendants in her court to avoid the OC Store. And in testimony to the Congressionally-authorized Indian Law and Order Commission, she specifically mentioned the drug. "We are ravaged by drugs and alcohol including prescription drug abuse, and now synthetic drugs," Miner told the commission in December 2011.
The OC Store operated out of a building at 32908 Iron Nation Road, seen in the lower left corner of this aerial view of Lower Brule, South Dakota. Across the field is the Golden Buffalo Casino on Sitting Bull Street. Image from Google Maps
But the majority said Miner, who testified during the trial, was not biased against Long or his store. "Miner’s knowledge of and involvement in the small tribal community is not the type of conduct that constitutes abandoning her role as a neutral and detached magistrate," Judge William J. Riley wrote for the majority. Although the judges were split on the legality of the July search, they were in agreement on the August one because it was authorized by a new owner of the building where the OC Store had been operating. The August search resulted in the seizure of a shipping box and other items that Long said were his property. The divided outcome could help Long make a stronger case for a rehearing before a larger panel of judges on the 8th Circuit. Further appeals could go to the U.S. Supreme Court. Synthetic marijuana has become a concern nationwide as law enforcement and communities grapple with an item that is marketed with names like Spice, K2 and Black Mamba. Health experts warn that the use of the so-called "designer drugs" could lead to wildly unpredictable behaviors. According to documents from the lower court case, US v. Long, tribal officers found two different version of the drug at the OC Store. The Drug Enforcement Administration has been banning different versions as new drugs are created by manufacturers. The OC Store was located in Lower Brule, South Dakota, and was sometimes called OC Novelties or the "Sioux Boys" store. The building where the business operated is near the tribe's gaming facility. 8th Circuit Decision:
US v. Long (August 14, 2015)
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