CA6: A few roaches in a trash pull isn’t PC drugs would be found

A few marijuana roaches found in a trash pull doesn’t add up to probable cause that drugs would be found in defendant’s home. United States v. Abernathy, 2016 U.S. App. LEXIS 21824 (6th Cir. Dec. 8, 2016):

After a thorough review of the record and relevant case law, we agree with Defendant that the evidence recovered from the trash pull here did not create a fair probability that drugs would be found in Defendant’s home. Our conclusion stems from two considerations.

First, a finding of probable cause here would be inconsistent with McPhearson. In McPhearson, the defendant had crack cocaine in his pocket, and the police arrested him and searched his pocket immediately after he stepped outside of his home and onto his porch. 469 F.3d at 520. These facts were included in the affidavit submitted to the magistrate. Id. at 521. The police thus had indisputable proof that drugs had recently been inside the defendant’s residence: the drugs were in his pocket, and he was inside the residence. Id. We nonetheless rejected the government’s argument that “an individual arrested outside his residence with drugs in his pocket is likely to have stored drugs and related paraphernalia in that same residence,” because there was no additional evidence that the defendant was or had been involved in drug crimes. Id. at 524-25.

The same reasoning is even more applicable here. The trash pull evidence Detective Particelli recovered from Defendant’s garbage suggested that a small quantity of marijuana might have recently been in Defendant’s residence. The connection between the recovered drugs and the residence is much more attenuated here than it was in McPhearson; while the officers could be absolutely certain that drugs had recently been in the McPhearson residence, there is no way of knowing with certainty that the trash pull evidence here: (i) came from Defendant’s residence at all; or (ii) if it did, that it was in the residence recently. If the crack cocaine found in the McPhearson defendant’s pocket did not create a fair probability that more drugs would be found in his home, a fortiori the trash pull evidence here did not create a fair probability that drugs would be found in Defendant’s residence. Cf. United States v. Brown, 828 F.3d 375, 382-84 (6th Cir. 2016) (holding that police lacked probable cause to search home even though drug dog alerted to defendant’s car, defendant had recently been detained for drug trafficking, and [**14] defendant had prior drug convictions, because there was an insufficient nexus between defendant’s drug activities and his home). Moreover, as in McPhearson, the critical missing ingredient from the Affidavit was evidence that Defendant had been involved in past drug crimes. McPhearson, 469 F.3d at 525. Although Detective Particelli knew of Defendant’s criminal history, he did not include those facts in the Affidavit, and therefore they could not have contributed to the magistrate’s probable cause finding. Brooks, 594 F.3d at 492.

Second, the connection between the small quantity of marijuana paraphernalia recovered from Defendant’s garbage and his residence is too logically attenuated to create a fair probability that more drugs were in the residence. Although the trash pull evidence certainly suggested that someone in the residence had smoked marijuana recently, that fact alone does not create an inference that the residence contained additional drugs. Drugs by their very nature “are usually sold and consumed in a prompt fashion,” Frechette, 583 F.3d at 378, and so the more probable inference upon finding drug refuse is that whatever drugs were previously in the residence had been consumed and discarded. Further, it is impossible to tell when the marijuana roaches and plastic bags were put into the garbage. Depending on the household, the trash pull evidence could have been put in the garbage anywhere from one day to several weeks earlier. The inability to tell when drugs were last in the home diminishes any inference that drugs were still in the home. Elliott, 576 F. Supp. at 1581-82; see also Brooks, 594 F.3d at 495 n.5 (suggesting that Elliott “may well have been correct in invalidating the search because there was no way of knowing how much time elapsed between the smoking of the marijuana and placing the trash on the curb”); Boyd, 422 F.2d at 792 (holding that a warrant to search a residence lacked probable cause where the affidavit failed to specify when the affiant “smelled the odor of fermented liquor” on the premises, and therefore the court could not tell whether the evidence was stale).

Briscoe and the cases the government cites in urging that probable cause was present here are inapposite. In Briscoe, the police found “forty marijuana seeds and twenty-five marijuana stems” in the defendant’s garbage. 317 F.3d at 907. A large quantity of drug refuse in a residence’s garbage suggests repeated and ongoing drug activity in the residence, and therefore creates a fair probability that more drugs remain in the home. See Elliott, 576 F. Supp. at 1581 (“[A] large quantity of discarded contraband … might indicate its continued presence in the house.”). Here, however, Detective Particelli only specified that “several” marijuana roaches and plastic bags were found in Defendant’s garbage. The word “several” means “more than one or two but not a lot,” indicating that the quantity of roaches and bags found in the trash pull was not large enough to suggest repeated or ongoing marijuana consumption in the residence. Black’s Law Dictionary, 1583 (10th ed. 2014).

Several of the government’s other cases are also distinguishable. …