Finding marijuana residue in trash doesn't justify search of the home for drugs, court rules
In United States v. Abernathy, a divided Sixth Circuit panel held that finding evidence of marijuana use in the trash placed outside a particular home does not (without more) generate probable cause to believe there is marijuana in the home. I tend to think the court was wrong.
In the case, agents suspected that there was drug activity in a particular home. Agents went to the trashcans outside the home and looked through the trash. Inside the trash, they found "several Marijuana roaches with Marijuana residue inside," "several plastic vacuumed packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue" with markings of T2, "a known strain of marijuana," and discarded mail that had been sent to that home. Officers obtained a warrant to search the home for drugs, and the relevant issue in the case is whether what the agents found in the trash created probable cause to believe that more drugs would be found in the home.
A divided Sixth Circuit held that no probable cause was established. Judge Eric L. Clay wrote the majority opinion joined by Judge Bernice B. Donald. Judge Raymond M. Kethledge filed a very brief dissent. Here's the key section of the majority reasoning:
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 [United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006)]. 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 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.
I'm not particularly convinced. To be fair, McPhearson strikes me as dubious, too. But even accepting McPhearson, it seems possible to distinguish it because McPhearson's reasoning focused on the difference between storing drugs on a person and in a home. A crack user might keep his crack in his pocket. In that case, finding crack in his pocket but outside his home doesn't signal that there will be more crack in the home when the user isn't inside.
In contrast, remnants of marijuana use found in the trashcan of a home were very likely discarded after use inside the home. The discovery of the marijuana in the trash associated with the home, together with discarded mail from the home, seems to link the drugs to the home in a way not found in McPhearson. Maybe that's an overly thin distinction, the relevance of which may depend on how close to the line McPhearson was. Or maybe McPhearson was wrong, too. Either way, I found this a pretty surprising result.