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State v. Jernigan

Superior Court of Delaware, Kent

June 13, 2019


          Submitted: May 14, 2019

          Lindsay A. Taylor, Esquire, DEPARTMENT OF JUSTICE, Dover, Delaware, for the State.

          Adam D. Windett, Esquire, HOPKINS & WINDETT, LLC, Dover, Delaware, for the Defendant.


          Clark, J.

         Defendant Christopher Jernigan[1] 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.

         Mr. Jernigan correctly recognizes that a registered qualifying patient who possesses marijuana and otherwise complies with Delaware's Medical Marijuana Act[2] (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.[3] As a result, the Court, under certain circumstances, must consider the fact that a person possessed a valid medical marijuana card in its probable cause analysis.

         Second, 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 GRANTED.


         The 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 Defense witnesses.

         On July 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.

         Patrolman 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.

         Patrolman 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 digital scale.

         Mr. 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.


         Mr. 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.

         First, 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.[4]

         Second, 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 check away.

         The 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.

         Second, 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.


         In a suppression hearing, the Court sits as the finder of fact, assesses witness credibility, and weighs the evidence.[5] 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.[6]

         The 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.[7] Probable cause is subject to a totality of the circumstances analysis.[8] 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."[9]


         Delaware has recently decriminalized possession of small quantities of marijuana.[10] Possession of less than one ounce of marijuana is now a civil violation if the accused is over twenty-one years of age.[11] 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 liability. [12]

         DMMA's 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.

         The 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.[13]

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 law.

         The 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 condition; and
(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 condition.[14]

         Subsection (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.[15]

          When reading Sections 4903A and 4913A of DMMA in pari materia, [16]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.

         In 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 ...

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