After her 7-year-old daughter, Liza, was diagnosed with an aggressive and generally fatal kind of brain tumor in 2011, Jennifer Scherr decided to treat the cancer with cannabis oil. At the time marijuana was not legal for medical use in Illinois, although a law authorizing a pilot program took effect this year. Scherr's father-in-law, Curtis Scherr, a Chicago police officer, nevertheless agreed to help her grow marijuana in the hope of prolonging his granddaughter's life. He obtained the high-intensity light bulbs Jennifer needed and stopped by the house periodically to check on the grow operation. But about a week after Liza died in July 2012, Curtis ratted out her grieving mother, filing a search warrant application in which he reported having seen 50 marijuana plants in Jennifer's basement. A state judge issued a warrant, which a dozen or so DEA agents used to search Jennifer's house on July 19. They did not find any contraband, since Jennifer had discarded the plants after Liza's death.
Between Curtis's marijuana cultivation assistance and his appalling betrayal of his daughter-in-law there was considerable acrimony over funeral plans, which seems to have been the officer's motive in seeking the search warrant. But according to a ruling issued last week by the U.S. Court of Appeals for the 7th Circuit, the search did not violate Jennifer's Fourth Amendment rights. Regardless of his motive, the court said, Curtis had probable cause to believe that evidence of a crime would be discovered in a search of Jennifer's home, since marijuana was at the time illegal for all uses under both state and federal law.
Judge Richard Posner conceded that "Curtis's behavior, which culminated in the DEA's search of his daughter-in-law's house, was, if it was as the complaint describes it, atrocious." Furthermore, the officer's failure to disclose his relationship to the suspect made his warrant application "misleadingly incomplete." Had Curtis been more forthcoming, Posner suggested, the search probably never would have happened:
Curtis was concealing from the judge asked to issue the search warrant information that if disclosed in the affidavit might well have doomed the application. Had the affidavit stated that the suspected possessor of the 50 marijuana plants was the affiant's own daughter-in-law, the judge would almost certainly have asked Curtis what was going on that would induce him to accuse his own daughter-in-law of criminal behavior, and upon learning the details the judge probably would have told Curtis to "work things out" privately—that this wasn't a proper matter for a criminal proceeding.
Still, Posner wrote, "the law is settled…that a police officer's motive in applying for a warrant does not invalidate the warrant." He called that "a sensible rule, though distasteful when applied in a case like this." He added that Jennifer probably would have more success in pressing a state claim against Curtis for intentional infliction of emotional distress, since "there is little doubt (always assuming the truth of the allegations in the complaint) that Curtis Scherr intended to inflict severe emotional distress on his daughter-in-law and succeeded in doing so."