Submitted: May 14, 2019
Lindsay A. Taylor, Esquire, DEPARTMENT OF JUSTICE, Dover,
Delaware, for the State.
D. Windett, Esquire, HOPKINS & WINDETT, LLC, Dover,
Delaware, for the Defendant.
Christopher Jernigan moves to suppress evidence seized
during a warrantless vehicle search. His motion raises two
issues of first impression in Delaware. The first issue
involves the application of the automobile exception to the
warrant requirement when the police base a search upon the
odor of raw marijuana emanating from a vehicle. He argues
that because he holds a medical marijuana card, the police
did not have probable cause to arrest him or search his
vehicle simply because an officer could smell raw marijuana
in his car.
Jernigan correctly recognizes that a registered qualifying
patient who possesses marijuana and otherwise complies with
Delaware's Medical Marijuana Act (hereinafter
"DMMA" or the "Act") is not engaged in
illegal activity. Nor is less than six ounces of marijuana
considered contraband when possessed consistently with the
requirements of that Act. As a result, the Court, under
certain circumstances, must consider the fact that a person
possessed a valid medical marijuana card in its probable
the motion raises the issue of whether the Court should
consider facts readily available to an officer, though not
known to the officer, when performing its probable cause
analysis. In this case, the searching officer did not know
Mr. Jernigan had a registry identification card. Mr.
Jernigan's status, however, was readily available in the
Delaware Criminal Justice System ("DELJIS"). The
officers on scene did not view the screen in DELJIS
containing this status, but under the circumstances of this
case, they should have. For that reason, the Court must
consider Mr. Jernigan's DMMA status in the totality of
the circumstances. When doing so, the police did not have
probable cause to search Mr. Jernigan's vehicle. His
motion to suppress must therefore be
FINDINGS FROM THE SUPPRESION HEARING
following facts are those found by the Court after the
suppression hearing held on May 14, 2019. The State presented
one witness, Patrolman Spicer from the Dover Police
Department. The Court finds him to be a credible witness and
accepts his testimony for purposes of its findings. The Court
also bases its findings, in part, upon the testimony of the
24, 2018, Mr. Jernigan and Ms. Deanem Moore drove a car to
Cherry Street, in Dover. Ms. Moore initially drove the car
and stopped it in the middle of the street in a high crime
area. At that point, she and Mr. Jernigan exited the car to
speak with bystanders.
Spicer and Patrolman First Class Wood, also from the Dover
Police Department, noticed the illegally stopped vehicle and
decided to investigate it. As they approached, Mr. Jernigan
reentered the driver's side door of the car and placed it
in reverse to remove it from the middle of the road. While
doing so, the car window remained down. At that point, the
officers activated their patrol vehicle's emergency
equipment. Patrolman Spicer then exited his vehicle. As the
officer approached the other car, Mr. Jernigan began raising
his front driver's side window until the officer
instructed him to lower it.
Spicer first smelled an odor of raw marijuana while he was
four to six feet from the car. When he stood next to Mr.
Jernigan, with the window again rolled down, the odor of raw
marijuana intensified. Patrolman Spicer could not identify
the quantity of marijuana in the car by smell. Nevertheless,
at that point, the officers immediately handcuffed Mr.
Jernigan and began searching his vehicle. Pursuant to his
search, Patrolman Spicer found a firearm in the vehicle. The
search also netted .1 grams of marijuana, ammunition, and a
Jernigan held a valid DMMA card and was a registered
qualifying patient as defined by the Act. He did not disclose
that fact to the officers, however, at any time prior to his
arrest or the search of his vehicle. The arresting officers
had the capacity to verify his status as a DMMA registry
cardholder through DELJIS before they conducted the search.
Nevertheless, Patrolman Spicer did not learn Mr.
Jernigan's status prior to the search. He testified that
Private First Class Wood conducted the DELJIS inquiries, but
could not be certain when PFC Wood conducted those inquiries.
At some point, some officer on site conducted the inquiries
and learned that Mr. Jernigan had a revoked license. The
officers did not, however, verify in DELJIS whether Mr.
Jernigan held a DMMA card. Multiple officers secured the site
and detained Mr. Jernigan in the rear of the patrol vehicle
before the officers began the search. A motor vehicle
recording ("MVR") demonstrates that there was no
sense of urgency or exigent circumstances present on the
scene prior to the search.
OF THE PARTIES
Jernigan does not dispute the lawfulness of the initial
traffic stop because he drove a vehicle that the police
observed illegally stopped in the middle of a public roadway.
He argues, however, that the police did not have probable
cause to arrest him and search his vehicle. His arguments are
appropriately summarized in two parts.
and primarily, he argues that DMMA completely decriminalizes
marijuana possession when one possesses it in a manner that
complies with the Act. Accordingly, he emphasizes that such
possession in no way amounts to a crime or a civil violation.
He also argues that the marijuana was not contraband because
he legally possessed it.
he argues that the officer's detection of raw
marijuana gave him no basis to suspect that the car housed
more than six ounces of marijuana or that Mr. Jernigan
consumed it. According to Mr. Jernigan, the officers should
have taken reasonable efforts to verify Mr. Jernigan's
DMMA status. In so arguing, Mr. Jernigan emphasizes that
verification was only a walk to the patrol car and a DELJIS
State counters broadly by arguing that DMMA is irrelevant in
search and seizure analysis. According to the State,
notwithstanding the Act, police have automatic authority to
search motor vehicles if they detect the smell of burnt or
raw marijuana. In this regard, the State asserts that DMMA
merely provides an affirmative defense to criminal and civil
liability. In support of its argument, the State cites recent
Delaware Supreme Court authority confirming, as a general
rule, that when an officer smells marijuana from within a
vehicle, the officer may lawfully search the vehicle.
the State argues that the totality of the circumstances in
this case included the following: Mr. Jernigan's motor
vehicle violation; the high crime area at issue; Mr.
Jernigan's suspicious behavior in rolling up his window
as an officer approached; and, the smell of raw marijuana.
These facts combined, the State argues, demonstrate the
probable cause necessary to justify the vehicle search. The
State argues that relevant circumstances do not
include Mr. Jernigan's DMMA status.
suppression hearing, the Court sits as the finder of fact,
assesses witness credibility, and weighs the
evidence. Since the motion challenges a
warrantless search, the burden is on the State to establish
that there was probable cause to justify a warrantless search
of a vehicle.
State relies upon the automobile exception to the warrant
requirement to support the search. Pursuant to that
exception, the police must have probable cause to believe
that an automobile is carrying contraband or evidence of a
crime before they may lawfully search the vehicle without a
warrant. Probable cause is subject to a
totality of the circumstances analysis. To establish
probable cause, the police are required to assess whether
there are "facts which suggest, when those
facts are viewed under the totality the circumstances,
that there is a fair probability that the defendant has
committed a crime."
COMPLETE LEGALIZATION OF MARIJUANA POSSESSED BY REGISTERED
QUALIFYING PATIENTS MUST BE CONSIDERED IF A DEFENDANT'S
STATUS IS KNOWN TO THE OFFICER.
has recently decriminalized possession of small quantities of
marijuana. Possession of less than one ounce of
marijuana is now a civil violation if the accused is over
twenty-one years of age. Within that statute, the General
Assembly clarified that it did not intend to modify
traditional search and seizure analysis with regard to
personal use amounts, notwithstanding the new reality that
possession and use of such an amount generates only civil
structure, however, is markedly different from the law
decriminalizing personal use quantities of marijuana. The
parties expended considerable effort arguing whether DMMA
completely legalizes possession and use for a select group of
persons. They dispute whether by completely legalizing
marijuana for that group, DMMA thereby eliminates all
criminal and civil stigma associated with lawfully possessed
amounts of marijuana.
State incorrectly argues that while DMMA defines compliant
marijuana possession as lawful, it does so only by creating
an affirmative defense. To the contrary, DMMA provides in
relevant part that:
[a] registered qualifying patient shall not be
subject to arrest, prosecution, or denial of any right or
privilege, including but not limited to civil penalty .
. . for the medical use of marijuana pursuant to this
chapter, if the registered qualifying patient does not
possess more than 6 ounces of usable marijuana.
At the outset, 16 Del. C. § 4903A(a) completely
prohibits arrest, prosecution, or assessment of civil
liability for DMMA compliant use. There is no reasonable
reading of DMMA that (1) acknowledges the absence of illegal
conduct by registered qualifying patients on one hand, while
(2) inconsistently permitting searches based upon what is
lawful conduct. The General Assembly's choice to include
language protecting "any right or privilege. . ."
for such a patient further evidences its intent that a
registered qualifying patient is not subject to search solely
because he or she possessed less than six ounces of
marijuana. In this regard, DMMA compliant possession is
simply no longer a criminal or a civil offense under Delaware
Court has considered the State's position that 16
Del. C. § 4913A entitled "Affirmative
Defense and Dismissal for Medical Marijuana"
demonstrates the General Assembly's intention that DMMA
compliant possession provides merely an affirmative defense.
Contrary to the State's argument, a plain reading of that
section demonstrates that it applies to individuals who are
not registered qualifying patients. Namely, Section
4913A(a) provides in relevant part that:
an individual may assert a medical purpose for using
marijuana as a defense to any prosecution of an offense
involving marijuana intended for the patient's medical
use, and this defense shall be presumed valid and the
prosecution shall be dismissed where the evidence shows that:
(1) A physician states that, in the physician's
professional opinion, after having completed a full
assessment of the individual's medical history and
current medical condition made in the course of a bona fide
physician-patient relationship, the patient is likely to
receive therapeutic or palliative benefit from marijuana to
treat or alleviate the individual's serious or
debilitating medical condition or symptoms associated with
the individual's serious or debilitating medical
(2)The individual was in possession of no more than 6 ounces
of usable marijuana; and
(3)The individual was engaged in the acquisition, possession,
use, or transportation of marijuana, paraphernalia, or both,
relating to the administration of marijuana to treat or
alleviate the individual's serious or debilitating
medical condition or symptoms associated with the
individual's serious or debilitating medical
(c) of that same section provides, however, that:
[a]n individual is not required to possess a registry
identification card to raise the affirmative defense set
forth in this section.
reading Sections 4903A and 4913A of DMMA in pari
materia, where (1) Section 4903A defines
activity by registered qualifying patients to be legal and
not grounds for arrest or prosecution, and where (2) Section
4913A provides that all persons may assert an
affirmative defense, such an affirmative defense applies to
those persons who are not registered qualifying
patients. When considering DMMA in its entirety, there is no
other reasonable reading of these two sections.
further support of its position, the State understandably
relies upon two recent Delaware Supreme Court cases and one
decision of this Court. The State argues that these cases
establish a rigid rule that DMMA's provisions are
irrelevant to the front-end-view ...