Speaker 1: And now in breaking news, the Oklahoma Supreme Court has
Speaker 1: thrown out a law requiring doctors at abortion clinics to
Speaker 1: have hospital admitting privileges, and in Virginia, a law requiring
Speaker 1: photo identification for all voters in all elections was upheld
Speaker 1: today by the US Court of Appeals for the Fourth Circuit.
Speaker 1: Now turning to the Sixth Circuit, police find evidence of
Speaker 1: marijuana use in the trash outside a home. They get
Speaker 1: a warrant based on that and search the home, where
Speaker 1: they find large quantities of cash, marijuana, cocaine, and firearms.
Speaker 1: The defendant pleads guilty, but the Sixth Circuit by a
Speaker 1: vote of two to one reverses, ruling that finding evidence
Speaker 1: of marijuana use in the trash placed outside a home
Speaker 1: without more does not justify a search of the home
Speaker 1: for drugs. Our guests are former state and federal prosecutor
Speaker 1: Jeffrey Kramer, a managing director at Berkeley Research Group, and
Speaker 1: Sima Boffman, professor at the University of Utah College of Law.
Speaker 1: Jeff inside the trash outside at the home, the police
Speaker 1: found several marijuana roaches with marijuana residue, several plastic vacuum
Speaker 1: packed heat seal bags consistent to those used to package
Speaker 1: marijuana for resale, containing residue and discarded mails into the house.
Speaker 1: Why does the court seem to bend over backwards for
Speaker 1: eighteen pages explaining why that's not enough to create a
Speaker 1: fair probability that drugs would be found in the home? Yeah,
Speaker 1: it does seem autumn and there are obviously is a
Speaker 1: logic to it um but there's certainly seems to be
Speaker 1: enough in DISHA or you know, elements that you could
Speaker 1: piece together, you know, abc D that would lead a
Speaker 1: logical person to believe that there remains drugs in the house.
Speaker 1: But it does seem like the courts decision that you
Speaker 1: could go through great lengths to come up with reasons
Speaker 1: why there might not be drugs in the house, and
Speaker 1: that's perfectly clear. It's probable cause, it's not a certainty.
Speaker 1: So you know, it seems like the court was me
Speaker 1: into reasons the trash could have been there for not
Speaker 1: taken out for weeks or months or whatever it is,
Speaker 1: which is absolutely true. So their points are well taken,
Speaker 1: but I think it it goes against what is common
Speaker 1: sense and again probable cause it was probably true that
Speaker 1: there were drugs in the House. There's a case called
Speaker 1: the United States versus McPherson that the Sixth Circuit talks about. That's, uh, well,
Speaker 1: I'll let you explain that the the case tell us about
Speaker 1: that case, what role played in this analysism, whether whether
Speaker 1: that should have made a difference. Sure, I mean the
Speaker 1: real issue here is, uh, you know, the courts have
Speaker 1: really been hesitant to allow for probable casts to be
Speaker 1: found on one trash poll. I mean cops kind of
Speaker 1: refer to this as a trash poll where they, you know,
Speaker 1: dress up like garbage people, they go collect the trash
Speaker 1: and then they decide whether you know, there's mariana in
Speaker 1: it through inspections in the lab. And um, I actually
Speaker 1: think that the Six Circuits opinion, although seeming to be controversial,
Speaker 1: it's really in line with a lot of others that
Speaker 1: have found that one trash poll isn't enough to establish
Speaker 1: probable cause. I mean, certainly reasonable suspicion, but without other
Speaker 1: evidence of drugs being found at the house, other reports
Speaker 1: of neighbors, other types of things. Probable cause is a
Speaker 1: high standard. And I think, besides what's mentioned in the
Speaker 1: Court's opinion, I think it's interesting because given the current
Speaker 1: climate with marijuana, with the uh, you know, increasing use
Speaker 1: in a lot of states and increasing kind of leniency
Speaker 1: amongst a lot of courts, it's not surprising to me
Speaker 1: that this court would find that that probable cause isn't
Speaker 1: established to search the whole house. Um, it could have
Speaker 1: been a neighbor that dropped it. You know, there's lots
Speaker 1: of other explanations, but Jeff, this was a case of
Speaker 1: sale that they were looking at, not a case of
Speaker 1: of use, which might make a difference. They rejected an
Speaker 1: eighth Circuit case where probable cause was established solely on
Speaker 1: the basis of a trash poll because it contained no analysis,
Speaker 1: They said beyond a citation. But tell me about the ascent. Well,
Speaker 1: I mean the descent makes you know, what I could
Speaker 1: argue is is a reasonable one. And the fact that
Speaker 1: the officers found enough again condition enough specific instances that
Speaker 1: there were still drugs in the house, and as you
Speaker 1: indicated that there was sales going on. It had the
Speaker 1: little baggies with a stamp on it that the officers
Speaker 1: knew from their training experience was marijuana, um et cetera. UM.
Speaker 1: So I think the descent is looking at it with
Speaker 1: an eye towards it. Again, it's problem cause while you know,
Speaker 1: higher standard than than some other things, that's certainly not
Speaker 1: beyond a reasonable daughter or other items we see in
Speaker 1: courtin it's not certainty. But I think the point that
Speaker 1: was just made is well taken. I think if you
Speaker 1: change it from marijuana to heroin and make it the
Speaker 1: needles and some other things indicating heroin's going on, and
Speaker 1: there are cocaine or whatever might be, maybe that becomes
Speaker 1: a different opinion. You know, they did rely and they
Speaker 1: make fierce and decision um where an individual came out
Speaker 1: with the crack pipe in his pocket and said that
Speaker 1: was too attenuated. So it is consistent within the sixth
Speaker 1: circuit um. And I think the takeaway from law enforcement is,
Speaker 1: you know, it's a lesson learned. Um is the rule
Speaker 1: in the sixth circuit now. So if you have that
Speaker 1: those elements in a trash poll, maybe you have to
Speaker 1: send in a confidential informant or an undercover or something
Speaker 1: to ascertain the sale. But I think one point is
Speaker 1: worth noting is what they recovered, so it wasn't just
Speaker 1: marijuana joints and scales and whatnot, and and something to
Speaker 1: separate the seeds. There was you know, guns, drugs and money, Um,
Speaker 1: and whether it's marijuana, cocaine or heroin gugs, drugs and
Speaker 1: money usually go together. We've got to leave it there.
Speaker 1: Thank you Jeff Kramer, Managing director at Berkeley Research Group,
Speaker 1: and Shima Baton, professed with the University of Utah College
Speaker 1: of Laws, for the decision of Bloomberg Law. Thanks to
Speaker 1: our technical director um John try Comey and our producer
Speaker 1: David Sutchervan Coming up Bloomberg Markets with Carol Master and
Speaker 1: Corey Johnson starts right now on Bloomberg Radio. We'll see
Speaker 1: you tomorrow. This is a burg