Court Rules Marijuana Residue Doesn’t Justify Search (Audio)

marijuana use in the trash outside a home. They get a warrant based on that and search the home, where they find large quantities of cash, marijuana, cocaine, and firearms. The defendant pleads guilty, but the Sixth Circuit by a vote of two to one reverses, ruling that finding evidence of marijuana use in the trash placed outside a home without more does not justify a search of the home

for drugs. Our guests are former state and federal prosecutor Jeffrey Kramer, a managing director at Berkeley Research Group, and Sima Boffman, professor at the University of Utah College of Law. Jeff inside the trash outside at the home, the police found several marijuana roaches with marijuana residue, several plastic vacuum packed heat seal bags consistent to those used to package marijuana for resale, containing residue and discarded mails into the house.

Why does the court seem to bend over backwards for eighteen pages explaining why that's not enough to create a fair probability that drugs would be found in the home? Yeah, it does seem autumn and there are obviously is a logic to it um but there's certainly seems to be enough in DISHA or you know, elements that you could piece together, you know, abc D that would lead a logical person to believe that there remains drugs in the house.

But it does seem like the courts decision that you could go through great lengths to come up with reasons why there might not be drugs in the house, and that's perfectly clear. It's probable cause, it's not a certainty. So you know, it seems like the court was me into reasons the trash could have been there for not taken out for weeks or months or whatever it is,

which is absolutely true. So their points are well taken, but I think it it goes against what is common sense and again probable cause it was probably true that there were drugs in the House. There's a case called the United States versus McPherson that the Sixth Circuit talks about. That's, uh, well, I'll let you explain that the the case tell us about that case, what role played in this analysism, whether whether

that should have made a difference. Sure, I mean the real issue here is, uh, you know, the courts have really been hesitant to allow for probable casts to be found on one trash poll. I mean cops kind of refer to this as a trash poll where they, you know, dress up like garbage people, they go collect the trash and then they decide whether you know, there's mariana in

it through inspections in the lab. And um, I actually think that the Six Circuits opinion, although seeming to be controversial, it's really in line with a lot of others that have found that one trash poll isn't enough to establish probable cause. I mean, certainly reasonable suspicion, but without other evidence of drugs being found at the house, other reports of neighbors, other types of things. Probable cause is a

high standard. And I think, besides what's mentioned in the Court's opinion, I think it's interesting because given the current climate with marijuana, with the uh, you know, increasing use in a lot of states and increasing kind of leniency amongst a lot of courts, it's not surprising to me that this court would find that that probable cause isn't established to search the whole house. Um, it could have

been a neighbor that dropped it. You know, there's lots of other explanations, but Jeff, this was a case of sale that they were looking at, not a case of of use, which might make a difference. They rejected an eighth Circuit case where probable cause was established solely on the basis of a trash poll because it contained no analysis, They said beyond a citation. But tell me about the ascent. Well, I mean the descent makes you know, what I could

argue is is a reasonable one. And the fact that the officers found enough again condition enough specific instances that there were still drugs in the house, and as you indicated that there was sales going on. It had the little baggies with a stamp on it that the officers knew from their training experience was marijuana, um et cetera. UM. So I think the descent is looking at it with

an eye towards it. Again, it's problem cause while you know, higher standard than than some other things, that's certainly not beyond a reasonable daughter or other items we see in courtin it's not certainty. But I think the point that was just made is well taken. I think if you change it from marijuana to heroin and make it the needles and some other things indicating heroin's going on, and there are cocaine or whatever might be, maybe that becomes

a different opinion. You know, they did rely and they make fierce and decision um where an individual came out with the crack pipe in his pocket and said that was too attenuated. So it is consistent within the sixth circuit um. And I think the takeaway from law enforcement is, you know, it's a lesson learned. Um is the rule in the sixth circuit now. So if you have that those elements in a trash poll, maybe you have to send in a confidential informant or an undercover or something

to ascertain the sale. But I think one point is worth noting is what they recovered, so it wasn't just marijuana joints and scales and whatnot, and and something to separate the seeds. There was you know, guns, drugs and money, Um, and whether it's marijuana, cocaine or heroin gugs, drugs and money usually go together. We've got to leave it there. Thank you Jeff Kramer, Managing director at Berkeley Research Group, and Shima Baton, professed with the University of Utah College

of Laws, for the decision of Bloomberg Law. Thanks to our technical director um John try Comey and our producer David Sutchervan Coming up Bloomberg Markets with Carol Master and Corey Johnson starts right now on Bloomberg Radio. We'll see you tomorrow. This is a burg