Lawsuit: An Officer's BS Claims About 'Odor Of Marijuana' Led To 14 SWAT Team Members Pointing Guns At Our Kids

from the maybe-it's-the-DETECTIVE-who-smells-like-marijuana dept

Another bang-up job by our nation's drug warriors (which included the use of flashbangs!) has resulted in yet another lawsuit alleging a host of rights violations. The Louisville (KY) PD's SWAT team was in such a hurry to raid a supposed drug dealer's house, the swearing officer couldn't be bothered to get any of the facts right. (via Reason)

Fourteen officers descended on Ashlea Burr and Mario Daugherty's home on October 26. The no-knock raid began with the breaking of the home's glass front door and didn't end until everyone in the house -- including three teenage children -- had assault rifles pointed at them. Despite the assurances of Detective Joseph Tapp that there would be drugs found in the house, there were no drugs found in the house.

The lawsuit [PDF] and the warrant affidavit [PDF] are disturbing reads. It shows just how little is needed to secure judicial permission to point guns at innocent people. They're best read together to highlight how much bullshit Det. Tapp shoveled onto the affidavit's pages to come up with something approaching "probable cause."

From the affidavit:

The complaint [an anonymous tip] stated a black male named Anthony McClain is growing marijuana and has multiple bags of marijuana packaged for sale in the front bed room.

From the complaint:

Nobody named Anthony McClain [...] lived at the house at or near the time of the raid.

Affidavit:

Metro complaint [an anonymous tip] also stated a white female named Holly was his girlfriend and owned the house.

Complaint:

A simple search of Jefferson County's PVA records would have shown that a man named Kevin Hyde owns the house.

[...]

Ashlea [Burr] and Mario [Daughtery] rent the house.

[...]

Ashlea is not white.

Affidavit:

Detective… approached the house to conduct a knock and talk.

Complaint:

[Detective] Tapp did not even attempt to knock on the door.

What makes up the bulk of the "probable cause" is Detective Tapp's nose. Tapp claimed he approached the house three times over a span of three weeks and each time was hit with the "smell of fresh marijuana." It's pretty difficult to dispute someone's sense of smell. But, by the same token, someone's subjective statement about an odor only they observed shouldn't be enough to establish probable cause.

Nothing else in the affidavit points to any evidence of criminal activity other than the (unsworn) assertions of the anonymous tipster -- a tip that got all the facts about the home's owner and residents wrong. Other than the description of the house, the only objectively verifiable fact in Detective Tapp's affidavit is the linking of a car Tapp saw parked in front of the house with one of the residents of the house (Mario Daugherty) via vehicle registration records. That's some goddamn fine detective work, Detective.

Thanks to Tapp's odor assertions, a family was needlessly traumatized by fourteen SWAT team members who recovered exactly zero (0) marijuana from the residence Tapp claimed offended his olfactory senses on no less than three (3) separate occasions.

The "smell of marijuana" is one of the most abused tools in law enforcement's toolbox a rights violation permission slips. It's an excuse to raid houses. It's a justification for invasive searches. It's a free pass on stealing cash and cars from citizens. It's a popular premise for pretextual stops, which tend to result in all of the above, plus roadside strip search/proselytizing and/or forcible late night baptisms in nearby lakes. Any time an officer swears they smelled marijuana, magistrates should ask "And?" Someone's unverifiable claims about odor should not be allowed to morph into guns-out raids of people's homes. The sanctity of the home -- the heart of the Fourth Amendment -- deserves more protection than this.

Filed Under: anthony mcclain, ashlea burr, drug war, drugs, joseph tapp, kefferson county, mario daugherty, no knock raid, police, swat team


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  • identicon
    Kitsune106, 13 Nov 2019 @ 3:50pm

    You know

    I kinda want to see someone pulling that one a cop, or dective in court then using one of those 2 dollar drug tests too see if a crumb is drugs.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 13 Nov 2019 @ 3:54pm

    Maybe the detective should switch to unscented deodorant so he stops smelling marijuana everywhere.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2019 @ 4:11pm

      Re:

      Or give up smoking what he has seized..

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 13 Nov 2019 @ 4:44pm

        Re: Re:

        The article did say the smelled fresh marijuana, not smoked. I am guessing that marijuana plants give of a distinctive odor, but I am wondering if that odor is strong enough to pass through closed doors and windows?

        It would certainly be comedic to give Joseph Tapp a smell test in the courtroom. I wonder how that might be setup?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 4:03pm

    One could live in those awful big cities with awful bad brown people but decriminalization or legalization.

    Snoop Dogg was caught in TX with weed and because he had a prescription from CA (he was on his tour bus), they didn't bust him.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 14 Nov 2019 @ 12:18am

      Re:

      "Snoop Dogg was caught in TX with weed and because he had a prescription from CA (he was on his tour bus), they didn't bust him."

      Yeah, being rich and famous does get you benefits not available to the poor.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 4:06pm

    Hey BRT I can’t wait for you to try to excuse this shitshow! If you lick their boots enough bro, maybe they will let you touch their “pistols.”

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 Nov 2019 @ 4:13pm

    ????

    OK..
    He was Walking in the area??
    where does this cop live?
    residential area??
    How in HELL can you decide Which home??
    Oh! he was probably in his car?
    Still the same question..HOW did he ascertain WHICH HOUSE??

    here's what would be nice to do...BUT WONT HAPPEN..
    make an anonymous report..
    about a drug smell or your purchase of drugs...
    AT THE COPS HOUSE..

    HOw long ans how fast will it be picked up that it is a COPS HOUSE??

    Its just a test..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 4:16pm

    Smoke Hemp

    In some states it is completely legal to smoke hemp but not recreational Marijuana. But, since the odor of each is identical - being hit with the "smell of fresh marijuana" isn't going to work anymore.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 6:55am

      Re: Smoke Hemp

      There could still be trouble if it's federally illegal.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2019 @ 7:28am

        Re: Re: Smoke Hemp

        Yeah, the fed still classifies pot at the same level of druggieness as heroin.

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 14 Nov 2019 @ 7:56am

        Re: Re: Smoke Hemp

        There could still be trouble if it's federally illegal.

        Possibly, but these BS raids seem to be mostly local police, which cannot enforce federal law. From what I hear DEA is more interested in big dealer networks, not busting a couple of locals for smoking. Legalize marijuana in all 50 states and this particular problem (and a bunch of others) goes away since 1) that's the most commonly used illegal drug and 2) as far as I know you can't smell meth, heroin, coke, crack, or pills.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 9:18am

          Re: Re: Re: Smoke Hemp

          Legalize marijuana in all 50 states and this particular problem (and a bunch of others) goes away

          It would only take 38 states, via Constitutional Amendment, to ban enforcement at the federal level; or even enforcement by the other 12 states if they so choose.

          The DEA's priorities can change with any new administration; people shouldn't get too reliant on their selective enforcement of laws.

          reply to this | link to this | view in chronology ]

      • icon
        R.H. (profile), 14 Nov 2019 @ 12:15pm

        Re: Re: Smoke Hemp

        Hemp is legal at the federal level. That came to pass last year because Kentucky farmers want to grow it in order to compete with cotton and "Moscow" Mitch McConnell is a Senator from Kentucky. That's what also made CBD based substances covered by the FDA and therefore subject to approval.

        reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 13 Nov 2019 @ 4:18pm

    Affidavit:
    Detective… approached the house to conduct a knock and talk.
    Complaint:
    [Detective] Tapp did not even attempt to knock on the door.

    Well, this affidavit excerpt doesn't state that the detective did knock. Only that he approached the house with the intent to knock.
    I can only assume the smell of marijuana was so overwhelming he couldn't make it to the door. /s

    That's technically not a lie. Then again, when your only defense is "that's technically not a lie", you're on pretty shaky grounds.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 14 Nov 2019 @ 5:03am

      Re:

      That's technically not a lie. Then again, when your only defense is "that's technically not a lie", you're on pretty shaky grounds.

      Only if you don't have a badge, if you've got one of those it's amazing how excuses that would normally get you laughed out of court are instead accepted as perfectly valid justifications/defenses.

      reply to this | link to this | view in chronology ]

    • identicon
      Michael, 14 Nov 2019 @ 5:40am

      Re:

      If he was smelling the marijuana he had just smoked, this would make a lot of sense.

      While high, it is entirely possible to try to knock on a door and completely miss.

      I wonder if any of the SWAT officers will be asked if they smelled marijuana during the raid.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 4:18pm

    What is even more worrying than what excuses are being used by the police is the way magistrates/judges sign off on giving these police offices all the permissions needed, without asking for let alone getting a shred of evidence to back up the excuses. It seems to me that they are even more at fault. Are they so desperate to get someone arrested/locked up/killed that they have to lie as much as the police? Remember, magistrates etc are supposed to be even more upright, intelligent and trustworthy than anyone in lower positions of law enforcement!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 4:32pm

    Government weed is 26 percent THC now. Go where it's legal.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Nov 2019 @ 4:42pm

    Focusing on the wrong aspect

    While 'armed raid on a family because there was a possibility that there were drugs in the house' is bad enough, it seems to me to miss a rather big problem in that even if there were drugs involved the response still would have been insanely excessive.

    We're talking about a substance that is legal in multiple states, so the idea that the possibility of some of it being in a house justifies over a dozen armed police is beyond absurd. However even if it were a 'harder' drug there are still better options that don't involve a bunch of trigger happy goons crashing into a house and pointing guns at anyone they find.

    If you have evidence that a house has a drug dealer then get an arrest warrant for said dealer, wait for them to leave, and arrest them outside of the house. At that point you have plenty of time to search the property, no 'guns blazing' needed.

    This would of course drastically reduce the chance to play 'armed intruder' with all the fun toys the police have, and while I'm sure that would be a huge disappointment to a good number of them anyone who treats a gun and the lives of those around them so dismissively really has no business with a badge in the first place.

    reply to this | link to this | view in chronology ]

    • icon
      Code Monkey (profile), 13 Nov 2019 @ 5:10pm

      Re: Focusing on the wrong aspect

      ...but then they wouldn't get to play with all the cool cop shit they got just laying around the cop house! :)

      reply to this | link to this | view in chronology ]

      • icon
        Norahc (profile), 13 Nov 2019 @ 5:48pm

        Re: Re: Focusing on the wrong aspect

        but then they wouldn't get to play with all the cool military shit they got just laying around the cop house! :)

        Fixed it for you.

        reply to this | link to this | view in chronology ]

      • identicon
        Eric, 14 Nov 2019 @ 10:09am

        Cops & Their Toys

        We had a major road in my town get shutdown for hours while SWAT conducted a warrant arrest....only problem was the guy they went to arrest wasn't at the location. Oops. I wonder if the news story about why the road was blocked tipped him off. That or the cops didn't do due diligence and verify the guy was on-site before bringing in the SWAT vehicles and shutting down a stretch of road.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 7:30am

      Re: Focusing on the wrong aspect

      Finding drugs isn't what these assaults are about. The goals and points of such exercises are:

      1) To test the limits of their power both from a legal standpoint and from a "how far until revolution" standpoint. How tightly can an authoritarian regime strangle the population, or do they need to wait some more before applying more pressure?

      2) Normalization and "it's like this all the time, get over it" of violations of law, civil rights, human rights and due process (cops really hate those last three and at their very core do not see 'laws' as something meant to bind them but rather something meant to protect them from their victims). You have to do it often enough so the outrage isn't as instantly murderous

      3) To gradually change the culture, ideals and behavior of a population through dissemination of violence and the threat of force against civilian non-combatants.

      Police are gearing up due to having no intention to scale back their abuses: They WILL continue ramping up the atrocities UNTIL people fight back - and at that point they're hoping their automatic weapons, armored vehicles and high-explosives will let them crush all resistance.

      Should the population wait too long while getting themselves disarmed, facially recognized and otherwise marked, they will succeed, and at that point instead of the government being guillotined and replaced by democracy once more, an iron regime that cannot be dislodged without an outside invasion will be in place.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 5:35pm

    This is enough to add Detective Joseph Tapp to the list

    Since Detective Joseph Tapp doesn't seem to have a problem falsifying warrant applications, he should have all of his previous cases looked over with a fine-tooth comb. He also needs the defense to be notified whenever he is going to testify due to his demonstratable lack of trust.

    reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 14 Nov 2019 @ 4:19am

      Re: This is enough to add Detective Joseph Tapp to the list

      Is Detective Joseph Tapp's middle name Brady?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 14 Nov 2019 @ 5:09am

      'For my next witness I would like to call a known liar.'

      He also needs the defense to be notified whenever he is going to testify due to his demonstratable lack of trust.

      Agreed with the first half, disagree with this half. The defense should never need to be informed of his past dishonesty before he is allowed to testify in court because he should never be called to testify in court, thanks to his demonstrable willingness to lie.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 13 Nov 2019 @ 6:24pm

    If "odor of marijuana" is all that's needed, Oakland California residents are all going to get searched. It smells like pot everywhere around there.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2019 @ 7:53pm

    @AC In some states it is completely legal to smoke hemp but not recreational Marijuana. But, since the odor of each is identical - being hit with the "smell of fresh marijuana" isn't going to work anymore.

    Smoking non-THC hemp sounds like drinking alcohol-free beer, I'm not sure what the point is. I don't know what numerous plants smell like, if anything, but the smell of marijuana being dried is a lot like skunk.

    One of the problems is that there don't seem to be any mechanisms to provide feedback to judges, to compare what they were told in the warrant application with what was actually found, except for lawsuits like this one. I guess neither judges nor cops really want to know.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 14 Nov 2019 @ 2:51am

      Re:

      Smoking non-THC hemp sounds like drinking alcohol-free beer, I'm not sure what the point is.

      Beer, not Vodka. If you are outside of the U.S., beer actually has a taste, believe it or not. Also alcohol-free beer is one of the better replenishing drinks, wagonloads better than some carbonized sweetened isotonic artificial sewage dump.

      Now smoking non-THC hemp, well... Don't ask me. I don't smoke anything, so I'm just not in a position to figure the attraction.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 14 Nov 2019 @ 5:12am

        Re: Re:

        Beer in the US does too have a taste! Granted, that taste is horse piss, but it still has taste!

        Also remember that a lot of beer in the US is imported, so stating that all beer in the US is bad is casting a negative light on beer from other countries.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 9:30am

          Re: Re: Re:

          The horse-piss beers (Budweiser, Coors, etc) should not be classified as beer. Real beers, like microbrews, have plenty of flavor.

          reply to this | link to this | view in chronology ]

          • icon
            JoeCool (profile), 15 Nov 2019 @ 1:18pm

            Re: Re: Re: Re:

            Yes, they have a long list of new flavors. Instead of just horse piss, we now can also get donkey piss, cow piss, goat piss, sheep piss, and hundreds of others! ;)

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2019 @ 1:40pm

        Re: Re:

        Yes, like the other ac said, there are many craft/microbrews that are quite good.

        reply to this | link to this | view in chronology ]

  • identicon
    Alphonse Tomato, 13 Nov 2019 @ 7:56pm

    @AC In some states it is completely legal to smoke hemp but not recreational Marijuana. But, since the odor of each is identical - being hit with the "smell of fresh marijuana" isn't going to work anymore.

    Smoking non-THC hemp sounds like drinking alcohol-free beer, I'm not sure what the point is. I don't know what numerous plants smell like, if anything, but the smell of marijuana being dried is a lot like skunk.

    One of the problems is that there don't seem to be any mechanisms to provide feedback to judges, to compare what they were told in the warrant application with what was actually found, except for lawsuits like this one. I guess neither judges nor cops really want to know.

    oops, first time posted without filling in name. if this makes a dupe, moderator please delete one copy

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2019 @ 8:09pm

      Re:

      Smoking non-THC hemp sounds like drinking alcohol-free beer, I'm not sure what the point is.

      Some people like to smoke CBD. The sources I have read say it creates a calming effect but doesn't get you high or intoxicated in any way.

      I don't know what numerous plants smell like, if anything, but the smell of I don't know what numerous plants smell like, if anything, but the smell of marijuana being dried is a lot like skunk.

      Marijuana usually has a pleasant spicy/incense-like smell. When burned it adds a less pleasant smoky smell but the smell is actually a selling point to people that use it. As a teenager my high schools halls often wreaked of it and I saw it more than a little but I didn't partake personally.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 14 Nov 2019 @ 12:21am

      Re:

      "Smoking non-THC hemp sounds like drinking alcohol-free beer, I'm not sure what the point is."

      I'd agree, but here in Spain it's not unusual to see people loading cases of 0,0% beer on the checkout. Not for me, but I don't really care what other peoples' taste in beverage is.

      reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 14 Nov 2019 @ 4:34am

    Permanent record

    Is there a record that judges reviewing warrant applications can look at to see what officers have misrepresented, lied, or glossed over in the past? Kinda like a Brady list, but for deciding special authorization rather than deciding witness credibility.

    Of course, we could also have a list of judges who've willingly gone along with unjustified warrants as well...

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 14 Nov 2019 @ 6:21am

    "..approached the house to conduct a knock and talk"

    Which is of course complete and utter bullshit.

    If your intention was a "knock and talk" then there was no need to obtain a warrant, was there?

    Put another way. In what universe have you gone to the time and administrative hastle to obtain a warrant and have assembled a heavily armed unit, authorised overtime, put together an assault plan, briefed them all.....but you were 'just' gonna have a word? Possibly an alternative inverse, but certainly not this one.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 7:33am

      Re:

      "approached the house to conduct a knock and talk"

      Is this the next step in our law 'n order insanity?
      Just like the NYPD stop n' frisk, this will not end well.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 14 Nov 2019 @ 8:13am

        Re: Re:

        Well, it's hardly new. At least this family didn't get shot dead inside their own homes, which is more than you can say for other recent cases.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 8:51am

          Re: Re: Re:

          Then the officers would have had to fill out more paperwork, which would have interfered with going home and fucking their sisters.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 6:39am

    It's Kentucky. The only Amendment they care about is the Second.

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 14 Nov 2019 @ 10:16am

    That's what they get for living in a poor neighborhood

    Look at the photo on the Reason site.

    If they'd had the good sense to live in a McMansion in a swanky suburb, they'd be fine.

    Silly plebs.

    reply to this | link to this | view in chronology ]

  • icon
    JohnG (profile), 14 Nov 2019 @ 11:23am

    Being able to conduct no-knock raids and in general act like soldiers instead of peace officers is exactly why the police are those most vehemently opposed to ending the War on Drugs Freedom.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 12:57pm

    This is just yet another of so many reasons that the war of Drugs needs to END!!! Luckily the police didn't murder anyone in this case. Just destroyed an innocent family home and gave them all nightmares. Yet more people that HATE their butts. Thin Blue line Gang.The biggest, criminal gang in the country.

    reply to this | link to this | view in chronology ]


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