Unlawfully seized evidence excluded; client wins big
June 9, 2023—Mark Foster’s client was charged with Level III fentanyl trafficking and faced a mandatory minimum sentence of 17.5 years if convicted. The evidence was seized based on claims by police officers that they smelled the odor of marijuana while following the client’s car, smelled it again when snooping around his parked car, and saw marijuana remnants on the center console of car while peering into the car. They used these observations as justification to search the client’s person when he returned to the car and then to search his car.
Foster filed a pretrial motion to suppress all seized evidence, asserting that the only basis for police to search was the marijuana odor and visual appearance. Foster cited a recent memo from the State Bureau of Investigation declaring that the odor and appearance of marijuana are indistinguishable from the odor and appearance of legal hemp and, accordingly, that the smell or appearance of marijuana would no longer constitute probable cause to search.
The trial judge agreed with Foster’s motion and found that the officers in this case had no other facts to establish probable cause to search. Therefore, he granted the motion to suppress, leaving the State with no case against the client.
