Lawsuit: An Officer's BS Claims About 'Odor Of Marijuana' Led To 14 SWAT Team Members Pointing Guns At Our Kids

from the maybe-it's-the-DETECTIVE-who-smells-like-marijuana dept

Another bang-up job by our nation's drug warriors (which included the use of flashbangs!) has resulted in yet another lawsuit alleging a host of rights violations. The Louisville (KY) PD's SWAT team was in such a hurry to raid a supposed drug dealer's house, the swearing officer couldn't be bothered to get any of the facts right. (via Reason)

Fourteen officers descended on Ashlea Burr and Mario Daugherty's home on October 26. The no-knock raid began with the breaking of the home's glass front door and didn't end until everyone in the house -- including three teenage children -- had assault rifles pointed at them. Despite the assurances of Detective Joseph Tapp that there would be drugs found in the house, there were no drugs found in the house.

The lawsuit [PDF] and the warrant affidavit [PDF] are disturbing reads. It shows just how little is needed to secure judicial permission to point guns at innocent people. They're best read together to highlight how much bullshit Det. Tapp shoveled onto the affidavit's pages to come up with something approaching "probable cause."

From the affidavit:

The complaint [an anonymous tip] stated a black male named Anthony McClain is growing marijuana and has multiple bags of marijuana packaged for sale in the front bed room.

From the complaint:

Nobody named Anthony McClain [...] lived at the house at or near the time of the raid.

Affidavit:

Metro complaint [an anonymous tip] also stated a white female named Holly was his girlfriend and owned the house.

Complaint:

A simple search of Jefferson County's PVA records would have shown that a man named Kevin Hyde owns the house. [...] Ashlea [Burr] and Mario [Daughtery] rent the house. [...] Ashlea is not white.

Affidavit:

Detective… approached the house to conduct a knock and talk.

Complaint:

[Detective] Tapp did not even attempt to knock on the door.

What makes up the bulk of the "probable cause" is Detective Tapp's nose. Tapp claimed he approached the house three times over a span of three weeks and each time was hit with the "smell of fresh marijuana." It's pretty difficult to dispute someone's sense of smell. But, by the same token, someone's subjective statement about an odor only they observed shouldn't be enough to establish probable cause.

Nothing else in the affidavit points to any evidence of criminal activity other than the (unsworn) assertions of the anonymous tipster -- a tip that got all the facts about the home's owner and residents wrong. Other than the description of the house, the only objectively verifiable fact in Detective Tapp's affidavit is the linking of a car Tapp saw parked in front of the house with one of the residents of the house (Mario Daugherty) via vehicle registration records. That's some goddamn fine detective work, Detective.

Thanks to Tapp's odor assertions, a family was needlessly traumatized by fourteen SWAT team members who recovered exactly zero (0) marijuana from the residence Tapp claimed offended his olfactory senses on no less than three (3) separate occasions.

The "smell of marijuana" is one of the most abused tools in law enforcement's toolbox a rights violation permission slips. It's an excuse to raid houses. It's a justification for invasive searches. It's a free pass on stealing cash and cars from citizens. It's a popular premise for pretextual stops, which tend to result in all of the above, plus roadside strip search/proselytizing and/or forcible late night baptisms in nearby lakes. Any time an officer swears they smelled marijuana, magistrates should ask "And?" Someone's unverifiable claims about odor should not be allowed to morph into guns-out raids of people's homes. The sanctity of the home -- the heart of the Fourth Amendment -- deserves more protection than this.

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Filed Under: anthony mcclain, ashlea burr, drug war, drugs, joseph tapp, kefferson county, mario daugherty, no knock raid, police, swat team