D.Mass.: Court doesn’t believe officer smelled marijuana; car search of computer and cell phone suppressed

The district judge disbelieves that the officer smelled marijuana, and suppresses the search of defendant’s car. The officer felt something was up but couldn’t articulate it. Inevitable discovery by inventory fails because there was no true inventory–no inventory was produced. United States v. Gemma, 2014 U.S. Dist. LEXIS 57823 (D. Mass. April 25, 2014):

Perhaps Trooper Morris thought he smelled a faint odor of raw marijuana; perhaps the wish was father to the thought. On the evidence, I am not persuaded there was such an odor, and the government has failed in its burden on that factual issue. Rather, it is apparent from Morris’s testimony, and I find, that what really motivated the search was his suspicion that something was up and he didn’t know what. What he saw was a teenage female traveling with a male in his late-twenties, with the parties themselves giving him inconsistent information. That may be a reason for further investigation as a general matter, but it is a far bit short of probable cause to conduct a thorough search of the automobile. See United States v. Ross, 456 U.S. 798, 809 (1982) (“In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.”).

The government’s fallback position is that the evidence found in the car would inevitably have been discovered during an inventory search of the car. “Evidence which comes to light by unlawful means nonetheless can be used at trial if it ineluctably would have been revealed in some other (lawful) way.” United States v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994). The government’s contention is that following the lawful arrest of the defendant, the car was towed back to the barracks and inventoried pursuant to state police policy. An inventory search is also an exception to the warrant requirement. See Colorado v. Bertine, 479 U.S. 367, 371 (1987). In that inventory search, the government contends, the contents of the Altima, including the computer and the defendant’s cell phone, would have been discovered inevitably and independently of the initial roadside search.

For this argument to succeed government must show that (i) the lawful search means would independently and necessarily have been employed, (ii) discovery of the contested evidence by that means was in fact inevitable, and (iii) application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment. Zapata, 18 F.3d at 978. Based on the evidence put before the Court, the government has not made the necessary showing. Specifically, the government has not shown that a routine inventory search was in fact conducted in this case.

Trooper Morris testified that he thought that Trooper Shea conducted the inventory, but did not have a clear memory. There is no direct evidence that an inventory search pursuant to an established policy was performed. Trooper Shea was not called to testify, and there was no documentary evidence of such a search, such as a completed inventory form. In fact, the evidence indicated that the space on the electronic record where the results of an inventory would normally be recited was blank. When asked why nothing was listed on the form, Morris stated that he didn’t believe there were any items of value in the car. One reason for that belief was that he had already gone to the car at the barracks to retrieve the computer that he knew was there before any purported inventory was connected. He went to get it, he testified, after his barracks interview with A.L. The information A.L. gave in the interview may (or may not) have supported a successful application for a warrant, but Trooper Morris was not authorized, the automobile exception no longer available with the car secured at the barracks, to commission his own targeted search without such a warrant.

In short, the evidence did not show that there was a routine inventory search conducted in this case and the government’s inevitable discovery argument fails for that reason.

Note: An African-American AUSA in Arkansas was stopped for DWB and subjected to an “I smell marijuana” search, which, of course, turned up nothing. The USAO secured the video of the encounter for posterity. That cop was burned. Hopefully more are.