Bewitched, Bothered, and Besieged

By Scott R. Williams

State v. Senna, 2013 VT 67

Today’s case demonstrates the importance of humility in criminal law.  If we should start with a moral, let it be this.  If you have cranky neighbors and you are involved in illegal activity, be nice to your neighbors and discrete in your interactions. 

Some may also view today’s case as another effort by the SCOV to thoughtfully balance several interests, including:

·         The rights guaranteed by the State and Federal Constitutions with the public’s right to be protected from the evils of marijuana (assuming for the moment that they exist);

·         The ability of police to avoid needless, and potentially dangerous, interactions with citizens by accessing available information;

·         The sanctity of the home and our right to be free from government intrusion with the compelling governmental interest in prosecuting low level marijuana dealers on the other.  

It’s really all about perspective, isn’t it?

Here is the story.  One fine day, police received a report of a child screaming.  Upon arrival, there was no indication of crime or any abuse of a child, but the investigating officer noticed an odor of “fresh marijuana” which was noticeable within approximately 2 feet of defendant’s apartment door, on an open, shared porch in a multi-unit apartment building.  The officer entered the apartment (evidently against the expressed objections of defendant) and found no evidence of a child in distress.  The officer found other evidence of a “higher” order, which was later suppressed by the trial court because it was obtained during this non-consensual and unwarranted entry.  (Get it?  Unwarranted?  Meaning, literally, “without a warrant?”)  We don’t know what that evidence was, and the SCOV claims not to consider it in its analysis.  One can imagine that it involved guns, drugs, Eurasian milfoil, or Robin Thicke videos, but we just don’t know.

Fortunately for all of our safety, the police continued to investigate, and spoke with a named neighbor, who said:

·         She had seen Defendant and his partner use heroin in front of the children; 

·         That Defendant and his partner had told her they sell marijuana and heroin from the apartment; and

·         “Every day” there was “a great deal of foot traffic of unfamiliar individuals” at the residence.

Despite the airtight observations from Gladys Kravitz, police did not seek to establish a time frame for these actions, and there was no collaboration of any of the neighbor’s claims through either available evidence or other witnesses.

Nevertheless, based on this information and the evidence observed during the initial, unwarranted sweep, a trial court judge granted a search warrant, authorizing police to enter the residence to search for evidence of marijuana (and we ought to assume, other drugs, proceeds of drug sales, scales, money, firearms, and photographs of the occupants engaged in criminal activity).  Police searched the apartment, and found evidence of drugs and criminal activity.  Defendant was charged with felonious cultivation (more than 25 plants) and possession of marijuana.

Defendant moved to suppress the evidence obtained via the search warrant, arguing that he did not consent to the officer’s initial entry into his home during the child welfare check.  Evidently, this argument was persuasive, as the trial court found that defendant had not consented.  Therefore, the trial court, in the hearing on the motion to suppress, ignored whatever information was contained in the affidavit of probable cause that had been obtained during the officer’s un-consented to entry of the home.

The trial court went on to determine that even without the evidence obtained during the unlawful entry of the home, the remaining information in the warrant established probable cause to enter and search the apartment.  

And, gadzooks and zoinks Batman, the trial court found that the odor of marijuana on an outdoor porch attached to a multi-unit apartment building, combined with the uncorroborated statements of the neighbor were sufficient to justify the granting of authority for police to forcibly enter and search defendant’s apartment. 

Specifically, the trial court concluded that the smell of fresh marijuana “just outside the front door” and the neighbor’s statements satisfied the state and federal constitutional requirements for issuing a search warrant of defendant’s home.  Defendant was subsequently convicted, and he appealed this ruling, upon which the evidence lies.

At the outset it seems worth noting that the SCOV doesn’t even mention the 4th Amendment to the United State’s Constitution, or Chapter One, Article 11 of the Vermont Constitution in its analysis of, well, the scope of constitutional protections of Vermont citizens and their homes. Both provisions are important because the SCOV has previously found that Vermont’s Constitution provides greater protections than the U.S. Constitution. 

Instead, the SCOV hits at the easy pitches.  It begins by dismissing the significance of Vermont’s Medical Marijuana Registry.  Defendant had argued that because someone in the house might have been enrolled to have medical marijuana that the mere smell of marijuana is not enough to create probable cause that criminal activity might be taking place.  Note, Defendant does not actually assert that he was on the Registry but merely argues that the potential that he might be is enough to defeat probable cause.  Finding that “the small possibility that someone in the residence might have been immune from prosecution” is not enough to negate probable cause, the SCOV swats this argument away in quick order (in eight easy paragraphs).

Nevertheless, this issue seems to merit more discussion.  If some citizens are legally permitted to possess and grow marijuana and if police have access to a 24 hour a day, seven days a week database to determine whether a resident is a registered marijuana patient and if marijuana is not a major public health problem, then shouldn’t the standard weigh the risk to citizens who are registered marijuana patients in having police execute search warrants based on “odor of marijuana?”  Wouldn’t that go to the heart of the “reasonableness” of the search?  

By analogy, if possession of a firearm were illegal without a license, but the legislature created a 24 hour a day police-accessible database of people who were authorized to possess firearms, then wouldn’t the police be obligated to use the tool that the legislature intentionally created, in part to avoid legal possessor’s being arrested?  Isn’t that what “unreasonable search means?”  

Not so under the reasoning in this case.  The SCOV while allowing that the criminal charge should be dismissed (because you committed no crime) appears to endorse the “unreasonable” seizure of your person, because checking the database is unnecessary due to the “small possibility” that you were doing nothing illegal.   

Given Vermont’s “decriminalization” of possession of both processed and growing marijuana by a person “who has been diagnosed in the course of a bona fide health care professional-patient relationship with a debilitating medical condition . . .” and is “A duly registered patient who complies with the requirements of the statute. . .” it seems that the Court’s decision that “the odor of marijuana outside a residence can serve as a basis for probable cause for a search warrant . . .” is . . . well . . . not constitutionally sound.

Completely absent from the Court’s analysis of our right to be free from government intrusion in our lives and homes is this simple fact—the police in this case, and any other case, could simply contact the data base, prior to seeking a warrant, to determine if a resident of the home is a registered patient, and thereby avoid an “unreasonable” search or seizure.  Under the reasoning here, police can ignore critical and legislatively created information, obtain a warrant, and forcibly enter, for example, the home of a terminal cancer patient, because the failure to check the data base only creates a “small possibility” that there will be injury to a constitutional principal.

In the end for Defendant, the issue of databases and registries are small potatoes.  The bulk of the SCOV’s decision revolves on the issue of “informant reliability” in probable cause determinations.  It is an analysis that appears to be breaking new ground.

Defendant’s remaining argument on appeal was that the credibility and/or reliability of the neighbor who alleged that she had seen Defendant involved in drug use and that Defendant had told her she sold drugs, combined with the claim that unknown persons were “in and out” at all hours of the day and night, was not established in the search warrant application.  It was not tied to a time-line, which meant the observation could have occurred weeks, months, or even years before.  The lack of corroborating evidence also means that there was no credibility check for Mrs. Kravitz (one conversation with Abner could have proven the former to be less than credible).  

However, the SCOV remedies these defects by stringing together several somewhat disparate cases to reach the conclusion that if a person is willing to be named and to make accusations against you, these two factors render that person a reliable source of information for purposes of a search warrant.  Briefly, says the SCOV,  if your neighbor is identified by name, they are presumed to be credible, and if something that COULD also be criminal activity is also observed by police (here, the stinky weed smell on the front porch), the two cross pollinate and become—voilà!—probable cause for police to execute a no knock warrant.  And if you actually happen to BE one of the registry patients mentioned above, maybe dying of cancer or coping with extreme anxiety, and your snoopy neighbor thinks you must be trouble so tells some “little white lies” . . . well . . . it’s a small price to pay to live in our increasingly “safe” society.

The real moral of this story, children, is this: if you are going to grow marijuana (and I am only addressing those of you who are doing it legally) spend the money on a good ozone and/or charcoal filter—it will be money well spent.  And be nice to your neighbors.  Don’t share (that’s illegal), but keep the witchcraft to a minimum.