11th Cir: 100 Marijuana Plants, But Search Still Illegal

Despite the defendant being convicted of growing more than 100 marijuana plants at a warehouse in Deerfield, the Court held that the search that led up to it was not valid, and that this evidence should therefore be suppressed.

Valerio first became under suspicion during an investigation by the Drug Enforcement Administration (DEA) in July 2011, after he was seen making a purchase at Green Touch Hydroponics -- which was likely to be used in growing marijuana. Valerio was spotted back at Green Touch a couple weeks later, and agents followed him out and behind his car, as well.

A series of other acts followed, including a K-9 sniff outside the warehouse that they had followed him to. A week later, after an unsuccessful attempt to gather evidence, police went to Valerio's home, in hopes of conducting a "voluntary citizen encounter," which the courts generally define as the voluntary cooperation of a citizen, without any coercive interrogation. This consisted of the agents driving to Valerio's home, not knocking, but instead waiting across the street until he emerged from his truck.

Officers then blocked his exit from the driveway with their vehicle, approached him with guns drawn, and conducted a full-body pat-down of Valerio's person. Valerio then admitted, after questioning, that he had indeed been growing marijuana in his warehouse.

The court first noted that the government does concede that nothing about this encounter was voluntary, and that all parties agreed that the encounter constituted a seizure under the Fourth Amendment. The main question in this case is whether or not the officers' stop-and-frisk of Valerio was constitutional under principles articulated in the landmark case of Terry v. Ohio

Before Terry came about, the Supreme Court interpreted the Fourth Amendment to require government officials to have at least probable cause or a warrant in order to conduct a valid search and seizure. Terry then came in and switched this game up, wherein SCOTUS recognized that there was an entire other rubric of police conduct that had not been addressed, in often dangerous or dire situations that called for immediate action. For this, it was determined that a lessened standard of "reasonable suspicion" was enough for these situations, where there may not be enough time to obtain a warrant.

In other words, probable cause was not the standard, but rather, reasonable suspicion was all that was required in order to allow police officers to conduct a Terry "stop-and-frisk." This was centrally for the sake of immediate urgency, however, which the courts did not find here with Valerio. Instead, they saw here a lack of exigency. Considering the fact that, after a week, they had no new evidence based off a suspicion that they could reasonably articulate. They lacked the pressing need for instant action, as Terry usually required.

This, in turn, makes all the evidence obtained as a result of this seizure suppressible, under the fruit of the poisonous tree doctrine, under Wong Sun v. United States. The Eleventh Circuit, in turn, vacated the denial of the motion to suppress. The case has been remanded back to the district court.

Related Resources:

• United States v. Valerio (Eleventh Circuit Court of Appeals)
• Independent Dog Sniff Evidence Not Fruit of the Poisonous Tree (FindLaw's Sixth Circuit Blog)
• Supreme Court Upholds Warrantless Marijuana Odor Search (FindLaw's Decided)