Court To Cop: You Need More Than 'Odor Of Marijuana' And Inconsistent Testimony To Justify A Warrantless Search

from the how-high-were-you-when-you-wrote-your-report dept

When cops are looking to perform warrantless searches, the only thing more useful than drug dogs is officers' own noses. The invocation of the phrase "smell of marijuana" magically dissipates the protective shield of the Fourth Amendment, allowing officers to engage in searches that often seem to resemble "general rummaging."

Every so often, this Constitutional evasion scheme fails to pay off. And it's usually because the officer engaging in a warrantless search or unjustified arrest has gotten used to getting away with it and is caught off-guard when someone questions their actions or challenges their methods.

That's the case here in this Delaware Superior Court decision [PDF], coming to us via FourthAmendment.com. This suppression order is the direct result of the assertions and actions of a particularly unreliable narrator, Wilmington Police Department Detective James Wiggins.

Detective Wiggins was roaming the streets in an unmarked car when he came across Ivan Cornelius sitting in his parked car. This soon turned into a full-blown search of Cornelius' vehicle, one that attracted the helping hands of six other officers before it concluded. The end result of the search was this:

Detective Wiggins claimed during direct examination that he found “a bunch of marijuana.” When pressed for more information during cross-examination, Detective Wiggins clarified and stated he meant a “bunch of leaves.” However, there was not enough to send to the lab for testing.

Training and experience etc.

When asked how many leaves it would take to submit the marijuana to the state lab, Detective Wiggins replied that he does not know.

That's kind of embarrassing for someone on the "Safe Streets Task Force" who's been given permission to fight crime on pretty much his own terms.

Detective Wiggins stated that it is his job “to stop things from happening before they happen” and, accordingly, to proactively stop cars and ride around looking for suspicious activity.

Wait. He wasn't finished. Here's how cross-examination went for Wiggins.

After being unable to state how many leaves are needed to send for testing, the Detective conceded that the lab is able to test even small, personal amounts of marijuana.

Mistakes were made, but at least the detective safetened the streets a bit by removing a "bunch" of drugs from circulation.

The Detective further conceded that the amount he allegedly observed was probably either less than personal use or just personal use.

What Wiggins does know is that the smell of marijuana is a pretty handy way to airgap his actions from the Constitution. As a free-roaming detective, Wiggins firmly believes this odor is all the reasonable suspicion he needs to engage in hundreds of undocumented stops and searches.

Notably, it is Detective Wiggins’s understanding that he can search the entirety of a car as long as he smells marijuana. Detective Wiggins explained that, as a standard patrol officer, he would normally have to call in a traffic stop into WILCOM if he stopped a vehicle. However, as a Task Force officer, he does not need to report to WILCOM when he stops a vehicle for a traffic stop. As Detective Wiggins puts it, if he stops a car and smells marijuana, but does not issue a ticket, there would be no record of it. Moreover, Detective Wiggins estimated that he has made around a thousand traffic stops in the four years that he has been assigned to the Task Force and that he stopped around fifty vehicles the week prior.

Completing Detective Wiggins' zero accountability loadout was the lack of recording equipment in his unmarked car and his employer being extremely slow on the body cam uptake.

All of this combined to give us the complete botchery observed above (and observed for a bit more below): a detective who doesn't seem to know much about weed making completely undocumented stops hundreds of times a year based almost solely on the unverifiable claim that he "smelled" something suspicious.

The court here isn't going to let Wiggins get away with this one. In addition to his inconsistent testimony on the amount of weed recovered during the search, the detective's narrative shifted when challenged by the defendant's lawyer.

Detective Wiggins’s initial testimony concerning his observation of the marijuana leaves and air freshener is contradicted by his later testimony. First, in response to what Detective Wiggins noticed about the car while engaging with Mr. Cornelius in the vehicle, Detective Wiggins claimed he smelled marijuana, observed marijuana leaves, and air freshener. Later, in response to Mr. Cornelius’s counsel’s statement concerning whether Detective Wiggins observed marijuana leaves before the two minutes and twenty second mark in the video, Detective Wiggins responded “I’m not sure if I’ve seen it yet or not.”

Finally, the court says the smell of marijuana alone cannot be enough to justify a stop or a warrantless search. (Emphasis in the original.)

The State argues that the smell of marijuana alone is sufficient to establish probable cause. Marijuana odors, while relevant to probable-cause determinations, does not require this Court to find that probable cause exists in every circumstance on sole basis of the odor. Probable cause determinations are made by evaluating the totality of the circumstances.

For instance, in Law v. State, the vehicle’s speed, the occupant’s extreme nervousness, and the odor of marijuana contributed to the Court’s determination that probable cause existed for the search of the car. Likewise, in Valentine v. State, the occupant’s excessive speed, the time of day, and the odor of marijuana contributed to the Court’s determination that probable cause existed.

No probable cause here. The court says the odor of marijuana likely didn't exist, the other officers at the scene positioned themselves "in a manner consistent with preparing for a search" despite there being no evidence a search was necessary, and the complete lack of normal procedures or documentation are fatal to the state's case. The detective's inability to maintain consistency during testimony and cross-examination certainly didn't help. The evidence (what little there was of it) is now gone and without it, the state has nothing left to prosecute.

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Filed Under: 4th amendment, odor, police, search, suspicion, warrantless search


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  1. icon
    Stephen T. Stone (profile), 20 Jul 2021 @ 7:52pm

    And that, ladies and gentlemen, is how a cop ends up on a Brady list.

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

  2. icon
    That One Guy (profile), 20 Jul 2021 @ 8:16pm

    'Welp, that case is a bust... on to the next car!'

    While it's nice that this particular case might have been tossed because he was shown to be a liar unless his job is also being revoked I expect that he'll be right back on the streets engaging in warrantless searches with the only difference being that he'll be slightly more careful crafting his lies in the future.

    'Oh noes you got caught lying to justify a search that's illegal as a result' should not just result in a lost case but a lost job and prohibition from ever getting it back.

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

  3. identicon
    Bobvious, 20 Jul 2021 @ 9:21pm

    Eau De Marijuana

    My favourite cologne, I mean sparkling after-shave.

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

  4. icon
    That Anonymous Coward (profile), 20 Jul 2021 @ 9:24pm

    Its okay he already lined up his next job... In Springfield.
    He'll be made Chief.

    wanders off humming the monorail song

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

  5. identicon
    Anonymous Coward, 20 Jul 2021 @ 11:47pm

    Re: 'Welp, that case is a bust... on to the next car!'

    And even if you take his job the people who trained him, the people who promoted him, the people who supervised him, the judges and prosecutors who were willing to overlook serious flaws in his cases to keep the assembly line of drug offenders moving...they'll all still be employed and some other drug cop who can lie a little better will just slide right in.

    But the police are so shameless they probably won't even throw this one liar out to act like they don't support this kind of thing. It's no coincidence when corrupt cops have numerous accolades because they arrest so many people. This kind of behavior is encouraged and rewarded.

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

  6. identicon
    dadtaxi, 21 Jul 2021 @ 12:24am

    Just how good was his nose anyway?

    I would like to have seen an analysis of those other cars he stopped and searched but presumably found nothing. That would have provided some empirical data on both his nose and also his "training and experience"

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

  7. This comment has been flagged by the community. Click here to show it
    identicon
    cookie clicker, 21 Jul 2021 @ 12:41am

    the analysis ?

    this is just a generic article, if you want those data you need to look more closely and I'm not sure about it

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

  8. identicon
    Anonymous Coward, 21 Jul 2021 @ 4:19am

    Re: the analysis ?

    Just a slightly sneakier way of trying to get your link posted on other people's blogs.

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

  9. identicon
    Anonymous Coward, 21 Jul 2021 @ 5:28am

    Re: the analysis ?

    This is just generic spam, if you want those spammy links you need to look more closely and I'm absolutely sure about it being spam.

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

  10. identicon
    Anonymous Coward, 21 Jul 2021 @ 5:32am

    Is there a market for an "Odor Of Marijuana" air freshener, to throw the police off the scent?

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

  11. identicon
    Pixelation, 21 Jul 2021 @ 5:37am

    Apparently

    What Detective Wiggins forgot to mention, the smell of marijuana was coming from his own car.

    Defense lawyer..."Mr Wiggins, can you describe what happened?"

    Officer Wiggins..."Um, I forget."

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

  12. identicon
    Anonymous Coward, 21 Jul 2021 @ 5:52am

    Why did I keep reading detective Wiggins as defective Wiggins? Maybe it because his detective skills seem defective,

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

  13. icon
    nasch (profile), 21 Jul 2021 @ 7:18am

    Evidence

    If the marijuana didn't make it to the lab, where is it? Why is it not available to be presented to the court? Did the officer just take it home and smoke it?

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

  14. identicon
    Annonymouse, 21 Jul 2021 @ 9:39am

    Re: This really stinks

    It's called turpentine.
    Just be careful how you store it in the vehicle.

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

  15. identicon
    Anonymous Coward, 21 Jul 2021 @ 10:26am

    Hemp smells the same

    In a memo that went out from a central Florida DA office the DA noted that Hemp and marijuana smell exactly the same. Hemp became legal in FL last year.
    The memo went on to say that You Need More Than 'Odor Of Marijuana' to Justify A Warrantless Search

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

  16. identicon
    Anonymous Coward, 21 Jul 2021 @ 3:13pm

    Re:

    That would be a really good way to get your car torn apart on the side of the road (if you're lucky and the cops don't "find" a dime bag).

    I like the sentiment though.

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

  17. identicon
    dr evil, 21 Jul 2021 @ 5:15pm

    the victims each need to file a PERMANENT RESTRAINING ORDER against these cops. they cannot be self investigated away, are permanent record, can lead to retraining if they keep their jobs and unemployment if red flag kicks in. they have proven they will do anything to keep their jobs and revenge will be on the table as you go after his police certification

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

  18. icon
    That One Guy (profile), 21 Jul 2021 @ 5:26pm

    Re: Evidence

    Yeah, 'I found marijuana but the lab and/or evidence locker never got it' really has no good explanations with the most 'harmless' being that he decided to 'test' it himself(which I suppose would explain why he keeps smelling it and engaging in so many searches...)

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


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