IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, :

: ID No. 1807016722

v. : In and For Kent County

: CHRISTOPHER JERNIGAN

, :

: Defendant. :

OPINION

Submitted: May 14, 2019 Decided: June 13 , 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.2

Defendant Christ opher Jernigan 1 moves to suppress evidence seized during a

warrantless vehicle search. His motion raises two issue s of first impression in

Delaware . The first issue involves the application of the automobile exception to the warrant requirement whe n the police base a search up on 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 (h ereinafter “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 p ossessed a valid medical marijuana card in its probable cause analysis

. Second, the motion raises the issue of whet her the Court should consider facts readily available to an officer , though not known to the officer, when performing its probable cause an alysis. 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, the y should have. For that reason

, the Court must

consider Mr. Jernigan’ s DMMA status in the totality of the circumstances. When

1 At the hearing, Mr. Jerni gan identified himself as Christopher Brewer, The Court will refer to him in this opinion as he is identified in the caption

. 2 16 Del. C. §§ 4901A

- 4928A.
3 See 16 Del. C. § 4903A(a) ( defining possession of less than six ounces to be in compliance with DMMA).3

doing so, the police did not h ave probable cause to search Mr. Jernigan’s vehicle.

His motion to suppress must therefore be GRANTED

.

F ACTUAL FINDINGS FROM THE SUPPRESION HEARING

The following facts are those found by the Court after the suppression hearing

held on May 14, 2019. The State pres ented one witness, Patrolman Spicer from the Dover Police Departme nt. 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. De anem Moore drove a car to Cherry Street, in Dover. Ms. Moore initially drove the car and stopped it in the middle of

the st reet 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 investi gate 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 veh icle’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 odo r 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.4

Pursuant to his search, Patrolman Spicer found a firearm in the vehicle. The search also netted .1 grams of marijuana, ammunition, and a dig ital scale. Mr. Jernigan held a valid DMMA card and was a registered qua lifying 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 le arn 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 le arned that Mr. Jernigan had a revoked license. The officers did not, however, verify in DELJIS whether Mr. Jern igan 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.

ARGUMENTS OF THE PARTIES

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 emphasiz es that such possession in no way amounts to a crime or a5

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 verif y 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 sea rch motor vehicles if they detect the sm ell of burnt or raw marijuana. In this regard, the State asserts that DMMA merely pr ovides 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. Jerni gan’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 probabl e cause necessary to justify the vehicle search. The State argues that relevant circumstances do not include Mr. Jernigan’s DMMA

status.

4 At the hearing, the Court queried whether marijuana remains contraband pursuant to federal law

, and if on that basis

, st ate law enforcement officers have grounds to search a car on that basis. The parties took no position on that matter, but instead focuse d all arguments on State law. As a result,
t he Court declines to include any such analysis in this decision.6 STANDARD OF REVIEW

In a suppression hearing, the Court sits as the finder of fact, assesses witness credibility, a nd 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 circums tances, that there is a fair probability that the

defendant has committed a crime.” 9

DMMA’s COM PLETE LEGALIZATION OF MARIJUANA POSSESSED BY REGISTERED QUALIFYING PATIENTS MUST BE CONSIDERED IF A DEFENDANT’S STATUS IS KNOWN TO THE OFFICER.

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 d id not intend to modify traditional search and seizure

5 State v. Dewitt , 2017 WL 2209888, at *1 (Del. Super. May 18, 2017).

6 Id.
7 Tatman v. State , 494 A.2d 1249, 1251 (Del. 1985).
8 State v. Maxwell , 624 A.2d 926, 928 (Del. 1993).
9 Id . at 930 (emphasis in the original).
10 See 16 Del. C. § 4764 (decriminalizing the possession of certain small quantities of marijuana by persons who are not prohibited).
11 16 Del. C. § 4764 (c)

.7

analysis with regard to personal u se amounts, notwithstanding the new reality that possession and use of such an amount generate s only civil liability

. 12 DMMA’s structure, however, is markedly different from the law decriminalizing personal use quantities of marijuana. The parties expended

consid erable effort arguing whether D MMA 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 sti gma associated with lawfully possessed amounts of marijuana. The State incorrectly argues that while D MMA defines compliant marijuana

po ssession as lawful, it does so only by creating an affirmative defense . To the contrary, D MMA 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 li ability for DMMA compliant use. There is no reasonable reading o f 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 o r she possessed less than six ounces of marijuana. In this regard,

12 See 16 Del. C. § 4764(h) (providing that “[n]othing contained herein shall be construed to repeal or modify any law or procedure regarding search and seizu re ”).
13 16 Del. C. 4903A(a) (emphasis added)

.8

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 an d Dismissal for Medical M arijuana” 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 appli es 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 intende d 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 o f 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 seri ous 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 a cquisition, 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 s erious 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

14 16 Del. C. 4913A(a) (emphasis added).
15 16 Del. C. 4913A(c).9

When readin g Sections 4903A and 4913A of DM MA in pari materia, 16
where (1) Section 4903A defines activity by registered qualifying patients to be legal and not grounds for arrest or prosecution , an d 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 o f 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 appropriate i n search and seizure a nalysis. Each of these cases are distinguishable.
First, the State cites Law v. State

. 17 There, the Supreme Court reiterated the general rule that “the odor of an illegal drug is sufficient to constitute probable cause

for the search of a car.” 18 In Law , the Court found the search of a car to be lawful based upon speeding, the occupant ’s extreme nervousness, and the odor of marijuana. 19 Importantly, the Law decision does not articulate whether the odor o f marijuana was raw or bu rnt. Furthermore, it does not examine the issue in the

context of an individual holding a valid registry identification card.
Likewise, in State v. Faulkner

, 20 this Court recognized that “[t]he odor of ‘marijuana alone, if articulable and particularized, may establish . . . probable cause

16 See Richardson v. Board of Cosmetology and Barbering of State , 69 A.3d 353, 357 (Del. 2013) (explaining that “[t]he doctrine of in pari materia is another well

- settled rule of statutory construction. Under this rule, related statutes must be read together rath er than in isolation...”).
17 Law v. State , 185 A.3d 692, 2018 WL 2024868, at *1 (Del. May 17, 2018) (TABLE).
18 Id. at *2.
19 Id. at *1.
20 State v. Faulkner , 2017 WL 5905576, at *1 (Del. Super. Nov. 30, 2017).10

for officers to believe that contraband is present in the area from which the scent

emanates. ’ ” 21 The Faulkner decis ion also did not address DMMA. Furthermore, it

did not address the differences between the odor of burnt versus raw marijuana. Such a distinction is directly at issue in the current case. Namely, an officer smelling burnt marijuana, where State law makes it ille gal to drive while consuming marijuana, generates probable cause pursuant to the general rule articulated in the

Law decision. 22
The smell of burnt marijuana in nearly all cases concerning vehicle stops raises particularized considerations regarding driving under the influence. Both the personal use decrimina lization a ct and DMMA preserve such a distinction in driving under the influence investigations. Delaware law provides that one drives under the influence of a drug if his or her blood contains “any amount” of that drug within four hours of driving. 23 With regard to personal use decriminalization, 16 Del. C. § 4764(g) provides that “[n]othing contained herein shall be construed to repeal or modify existing laws . . . concerning the oper ation of motor vehicles or other actions taken while under the influence of marijuana.” 24 Driving under the influence

remains crimin al activity notwithstanding perso nal use decriminalization

. W hen there is probable cause to expect use at or near the time of drivi ng, a n arrest is lawful.

Such lawful arrest triggers the automobile exception to the warrant requirement and

21 Id. at *1 (citing Fowler v. State , 148 A.3d 1170, 2016 WL 5853434 , a t *1 n.5 (Del. Sep. 29, 2016) (TABLE) ).
22 See Coley v. State , 886 A.2d 1277, 2005 WL 2679329, at *2 (Del. Oct. 18, 2005) (TABLE) (finding probable cause for an arrest based on the smell of “burnt marijuana” emanating from the suspect’s vehicle in conjunction with the passenger’s nervous behavior, driving 20 miles b elow the speed limit, and abrupt lane changes); and State v. DuBose , 2016 WL 1590583, at *9 (Del. Super. Apr. 18, 2016), aff’d , 152 A.3d 582, 2016 WL 7212307, at *1 (Del. Dec. 12, 2016) (TABLE) (considering the odor of burnt marijuana emanating from a moto r vehicle in conjun ction with other factors to constitute probable cause for a warrantless search).
23 21 Del. C. § 4177 (a)(6).
24 16 Del. C. § 4764(g)

.11

thus permit s a search. In other words, when an officer smells burnt marijuana he or

she h as discovered evidence demons trating a fair probability that someone drove

after consum ing marijuana. Where there is smoke and driving , there is a fair probability of use and driving

. DMMA also maintains this distinction for purposes of driving under the influence. Namely, it pro vides in part that its protections do not prohibit criminally charging a registered qualifying patient when such person (1) smokes marijuana

in side any form of transportation, or (2) has physical control of a motor vehicle while

under the influence of mari juana. 25 Therefore, for a DMMA card holder, there is a meaningfu l distinction between when an officer smells burnt versus raw marijuana. The strongest mandatory authority on this issue is the Delaware Supreme

Court’s recent order in Valentine v. State

. 26 It is distinguishable, however, because it did not address the issue before this Court. For the first time, the Supreme Court

in Valentine directly addressed the potential distinction between the smell of burnt

versus raw marijuana in search and seizure analysis. There, the defendant argued broadly that the recent statutory changes (including DMMA) altered search and seizure analysis related to contraband. 27 The Supreme Court rejected that argument and held that “[m]arijuana [raw or burnt] was, and remai ns, contraband subject to

forfeiture.” 28 The Valentine decision stands for the principle that th ese two a cts do not change well

- established search and seizure law. Moreover, the decision also recognizes that DMMA does not abrogate search and seizure law relevant to marijuana possession across all classes of defendants. The Valentine decision

, however, went no further.

25 16 Del. C. § 4904A(a) (3), (4).
26 Valentine v. State , 2019 WL 1178765, at *1 (Del. Mar 12, 2019).
27 Id. at *2.
28 Id.12

Mr. Jernigan’s situation presents a different issue than the Valentine defendant’s generic reference to the two a cts. Here, Mr. Jernigan possessed a valid

DMMA ca rd at the time of the search. Rather than a case where a defendant claims

a sweeping abrogation of search and seizu re law, this Court must examine the situation where Mr. Jernigan was statutorily immune from arrest, prosecution, or denial of any right. 29 To give DMMA effect , when one possesses a valid registry

identification card, and an officer knows that he or she does, that person’s status

must factor into the totality of the circumstances

. The State also cites a number of cases from other jurisdictions in support of its argument. Those cases primarily address partial decriminalization for personal

use amounts. 30 The only case the State ci tes addressing medical marijuana does not support its position. Namely, the Supreme Court of Arizona in State v. Sisco 31 examined an issue close to the one at hand in light of Arizona’s medical marijuana

statute (“AMMA”) . Arizona’s statute is very similar to DMMA.

In Sisco , police sought a warrant to search an apartment where officers could smell a strong odor of fresh marijuana while standing outside. 32 The Supreme Court of Arizona noted that “the odor of marijuana in most circumstances will warrant a

29 See 16 Del. C. 4903A(a) (stating that “[a] registered qualifying patient shall not be subject to arrest, prosecution, or denial of any right or privilege ... for the medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more th an 6 ounces of usable marijuana”).
30 See State v. Barclay , 398 A.2d 794 (Me. 1979) (holding that probable cause existed to search a

car based on the odor of marijuana even when the amount of marijuana found constituted only a civil violation); State v. Smalley , 233 Or

. App. 263 (2010) (holding that a police officer had probable cause to search a vehicle despite case law dictating that possession of less than one ounce of marijuana does not in itself create probable cause for a search ); State v. Ortega , 749 N.W.2d 851 (Minn

. 2008) (holding that an officer had probable cause to search a vehicle after defendant handed over an amount of marijuana that would only constitute a petty misdemeanor) R obinson v. State , 152 A.3d 661 (Md. 2017) (holding that police had probable cause to search a vehicle based on the odor of marijuana , despite small quantities being decriminalized).
31 State v. Sisco , 239 Ariz. 532 (2016).
32 Id. at 534.13

r easonable person in believing that there is a fair probability that contraband or evidence of a crime is present.” 33 Nevertheless, the Arizona court recognized that:
[t]his does not mean, however, that AMMA has no effect on an officer’s probable cause determination. Because probable cause is determined by the totality of the circumstances . . . and marijuana possession or use is lawful when pursuant to AMMA, . . . a reasonable officer cannot ignore indicia of AMMA

- compliant marijuana possession or use that could dispel probable cause. . . [W]e have consistently held that police must include exculpatory facts that are known to them [in an affidavit in support of a warrant]. 34

The Sisco court further recognized that presentation of a valid registry card

c ould dispel the probable cause resulting from an officer’s detection of marijuana by sight or smell. 35 Unlike the case at hand, Sisco involved a residential search authorized by a warrant. The Supreme Court of Arizona found the warrant to be

valid in a si tuation when by the time the police first confronted the occupants, the court had already approved the warrant and the police executed it. 36 In the context

of a warrantless vehicle search , there is a heightened opportunity to discover a

defendant’s DMMA s tatus prior to the search. By its very nature, a totality of the circumstances review is intensely factual

. 37
The State incorrectly argues that DMMA st atus is completely irrelevant when weighing the totality o f the circumstances

. When weighing the fact s, a court must

consider circumstances that both enhance and detract from a prob able cause

determination. 38 DMMA’s provisions providing that possessing less than six ounces

33 Id

. at 536

. 34 Id. at 537

. 35 Id.
36 Id. at 534.
37 State v. Gates , 2018 WL 6016840, at *5 (Del. Super. Nov. 16, 2018).
38 See Gardenhire v. Schubert, 205 F.3d 303, 318 ( 6th Cir. 2000) (explaining that in making a probable cause determination, “an officer cannot look only at the evidence of guilt while ignoring all exculpatory evidence. Rather, the officer must consider the totality of the circumstances,14

of marijuana is no longer criminal, no longer contraband

, and no longer generates

c ivil liability, must be considered if the officer is aware of the defendant’s status

.

T HE SEARCHING OFFICER S WERE NOT AWARE THAT MR. JERNIGAN HELD A REGISTRY CARD PRIOR TO THE SEARCH; HOWEVER, MR. JENRIGAN’S DMMA STATUS WAS READILY AVAILABLE DURI NG THE TRAFFIC STOP.
Having determined that a person’s status as a registered qualifying patient may be a relevant factor under the totality of the circumstances, the Court must address to what extent, if any, a patrol officer is obligated to verify suc h status before conducting a vehicle search. A person’s status relevant to DMMA is available through a search in DE LJIS

. The officers had the ability to view this entry in DELJIS in one of the patrol vehicles on site. The MVR demonstrates no urgent or extenuating circumstances that make it unreasonable for the officer to have run a DELJIS check prior to searc hing Mr. Jernigan’s vehicle. 39
Patrolman Spicer’s testimony likewise confirmed no urgency on the scene

. Rather, his testimony demonstrated his understanding and train ing that regardless of exculpatory circumstances, smelling marijuana in a vehicle, autho r izes a search of

that vehicle. Namely, Patrolman Spicer testified as follows :

recognizing both the inculpatory and exculpatory evidence, before determining if he has proba ble cause to make an arrest”). See also Richie v. Coldwater Cmty. Schools , 947 F.Supp.2d 791, 821 ( W.D. MI. 2013) ( explaining that an officer’s probable cause determination must include “facts

an d circumstances establishing statutorily legitimated affirmative justification for the suspected criminal act” and that police “cannot ignore information that would alert a reasonable officer that the suspect’s behavior is protected by a legally cognizable affirmative defense” ) ; and Kuehl v. Burtis , 173 F.3d 646, 650 (8th Cir. 1999) ( holding that in a determination of probable cause “we analyze the weight of all the evidence

– not merely the sufficiency of the incriminating evidence...”)

. 39 See BeVier v. Huc al , 806 F.2d 123, 128 (7th Cir. 1986) (recognizing that “probable cause is a function of information and exigency”).15

Q: So you were aware that you could run someone’s name through DELJIS and find out if they were a medical marijuana patient, correct? A: Correct

. . .
Q: Now, when you learned of his identity, you didn’t then run his name through DELJIS, correct? A: We did run his name through DELJIS to see if he had a valid Driver’s License or any active capiases or warrants. Q: Okay. And when you ran his name through DELJIS, was that before the search? A: I believe PFC Wood is the one that cond ucted all of the DELJIS inquiries on [Mr. Jernigan]. I believe that would be after the search. Q: Okay, so you don’t think

– A: From the best of my recollection, I believe that would be after the search.

. . .
Q: Okay. And if you ha d known that he was a medical

car dholder, that Mr. Brewer was a medical marijuana cardholder, would you have then not searched the vehicle? A: No, his vehicle still would have been searched to insure that he has less than 6 ounces of marijuana, and it was packaged correctly, not for
stre et

- level dealing.

. . .
Q: Now, at the time that you initiated the search, did you have reason to believe that there was more than 6 ounces of marijuana in the car? A: I detected an odor of marijuana. I did not know how much was in the vehicle.

Give n this reality, Mr. Jernigan argues that the investigating officers should

undertake a reasonabl e DELJIS query before conducting such a search. Accordingly, the issue s distill down to what extent the Court should consider

information t hat was readily available to the officer despite the officer being unaware

of that information because of his inaction.16

In deciding this issue , the Court initially considers recognized precedent

r egarding the facts relevant to determining probable cause

. Namely, an officer’s training and experience must be considered when weighing the facts available to the

officer. 40 It is that recognition that in the first instance permits the general rule that

when an officer recognizes the odor of marijuana coming from a vehicle, he or she may search the vehicle. 41 The Court must evaluate both reasonable suspicion and the elevated evidentiary standard for probable cause through the eyes of a

reasonable

, trained police officer in the same or simi lar circumstances, combining objective facts with such officer’s subjective interpretation of those facts. Evaluating searches through this lens cuts both ways, however, depending

upon the circumstances

. In formulating probable cause:
[w] here there is a n opportunity for inquiry and investigation, inquiry and investigation should be made . . . An officer is not warranted in relying upon circumstances deemed by him suspicious, when the means are at hand of either verifying or dissipating those suspicions

w ithout risk, and he neglects to avail himself of those means. 42
Where there is no risk and little inconvenience in conducting an inquiry before a warrantless search of a person’s vehicle, a reasonable level of inquiry is appropriate. 43 The parties did not cite, and the Court did not locate Delaware

40 State v. Maxwell, 624 A.2d 926, 931 (Del. 1993).
41 Fowler, 2016 WL 5853434, at *1.
42 Filer v. Smith , 55 N.W. 999 , 1001

- 1002 ( Mich. 1893)

. 43 See BeVier, 806 F.2d

. at 128 (holding that where information could easily have been obtained and was necessary to conclude if a crime had been committed, it was unreasonable for the officer not to make those inquiries. It remains u p to investigating and arresting police officers to “extract that information” that may help clarify the circumstances of the arrest) ; Baptiste v. J.C. Penny Co., 147 F.3d 1252, 1259 (10th Cir. 1998) (explaining that while conducting a totality of the circumstances determina tion, a police officer may weigh the credibility of witnesses, but “they may not ignore available and undisputed facts”). See also Howell v. Moore , 2018 WL 9478511, at * 7 (E.D.VA. Aug. 24, 2017) (explaining that an officer may not disregard readily availab le exculpatory evidence. Here the defendant had notified the police t hat he had prescriptions for controlled substances and provided them the address and number of his 24

- hour pharmacy where17

authority directly addressing this issue. Nevertheless, objectiveness is the benchmark for search and seizure analysis. Reasonableness is as well. Under this case’s circumstances, the offic ers ’ failure to avail themselves of a readil y available fact that exculpated Mr. Jernigan was objectively unreasonable. An officer must make such a reasonable inquiry when the circumstances reasonably permit. 44
In examining this tenet, LaFave’s Criminal Pr ocedure treatise best describes

the two side s of the premise. Namely, [i]n the usual case, . . . a trained and experienced officer will have probable cause in circumstances, when the layman would not . . . because of his training and experience . But the experience

- expertise rule cuts both ways; an experienced officer will be held not to have had probable cause if a man, with his special skills . . . should have recognized that no criminal conduct was involved. 45

Here, the precipitating event for the exchange was a traffic violation. Part of the criminal activity alleged involve d Mr. Jernigan driving without a valid license. A DELJIS check at some point was necessary. In fact, an officer performed one

while on scene to check for capiases, warrants, and to check his drivers’ license

status. The officer need only have checked an additional screen prior to conducting

a search where the basis for that search was the odor of raw marijuana. Furthermore,

the MVR demonstrates anything but urgency in the si tuation before and during the

search. Mr . Jernigan did not resist his arrest

, and the officer place d him in the patrol

car where he could have easily verified his DMMA status via a terminal in that same

the y could verify his prescriptions. The court found that the pol ice had violated the defendant’s Fourth Amendment rights by not pursuing this “readily available exculpatory evidence”).
44 See United States v. Evans , 851 F.3d 830, 835 ( 8th Cir. 2017) (holding that officers “have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as ‘law enforcement would not [be] unduly hampered ... if the agents ... wait[] to obtain more facts before seeking to arrest ’ ” and “[a]n officer need not conduct a ‘mini

- trial’ before making an arrest, but probable cause does not exist when a ‘minimal further investigation’ would have exonerated the suspect”)

. 45 2 Wayne R. LaFave et. el

., Criminal Procedure § 3.3(b) (4th ed. 2018) (emphasis added)

.18

patrol car. Under these facts, the investigating officers did not take reasonable effort to apprise themselves of readily available information that would have demonstrated

that Mr. Jernigan likely did not violate Delaware marijuana laws. Because the police should have reasonably veri fied Mr. Jernigan’s status, t he totality of the circumstances in this case include : (1) a traffic violation; (2) suspicious

, though legal behavior of rolling up a window; (3) an odor of raw marijuana, and (4 ) Mr. Jernigan’s readily available DMMA status

. With the later exculpatory fact considered in the totality of the circumstances, the evidence does

not ris e to the level of probable cause.

The Court is mindful of law enforcement’s desire for blanket rules tha t provide ease in application. The Court ful ly recognizes that the officers in this case acted in good faith and performed a search in compliance with a general rule that they believed was applicable in all situations

. DMMA, however, has partially changed the landscape relevant to marijuana possess ion

. The police must consider those changes when evaluating the justification for a warrantles s vehicle search.

Search and seizure law does not lend itself to general rules or precise standards, but

rather turns on the totality of the circumstances. 46 A warrantless vehicle search is a significant intrusion, and the totalit y of the circumstances must first justify that a
defendant violated a law when assessed through the eyes of an ex perienced and

trained officer. Here, under the facts of this case, an experienced and trained officer should have verified Mr. Jernigan’s status before subjecting him to this search

.

46 Maxwell , 624 A.2d at 928

.19 CONCLUSION The General Assembly chose to distinguish between lawful marijuana possession pursuant to DMMA and other us es that are unlawful ( either criminally or civilly). Given this distinction, prior to the search, there was insufficient evidence

in this case to demonstrate a fair probability that the marijuana Mr. Jernigan possessed w as contraband under State law. For that reason, his motion to suppress

must be GRANTED

.