Marijuana-stuffed salmon confiscated by Baton Rouge police in 2012 are at the center of a unique legal battle that already navigated three Louisiana courts and soon will be headed upstream to the highest court in the land.
The case, which pits police use of deceptive practices against the constitutional right to privacy and freedom from unreasonable search and seizure, has prompted one Louisiana Supreme Court justice to question “whether the fish search passes the ‘smell test.’ ”
The outcome of the litigation will affect whether East Baton Rouge Parish prosecutors can continue to pursue drug and weapons charges against 43-year-old Jacson Moore, of Baton Rouge, from whom narcotics officers seized the loaded fish.
The saga of the stuffed salmon began Nov. 9, 2012, when two officers were at the UPS processing center in Port Allen looking for suspicious incoming packages that might contain drugs. The officers, about 8:15 a.m., noticed a package addressed to a Bob Pettit Boulevard apartment that was shipped via an authorized shipping agent from the Oakland, California, area known to police for marijuana distribution.
Drug traffickers often use authorized agents because the shipper’s name is not required, according to court documents filed in the case, and next-day delivery is utilized because of a 10:30 a.m. delivery guarantee that traffickers believe will prevent law enforcement interference if the deadline is met.
The officers did not obtain a search warrant to inspect the package or call in a drug-sniffing dog but instead allowed it to be delivered to its destination while they watched.
“It is unreasonable to believe that in a two-hour time frame, the police were unable to request a warrant or a narcotics canine despite being able to do so in a reasonably short time in almost every other situation,” argues Moore’s lead attorney, Rodney Messina.
Moore retrieved the package from his doorstep where it was delivered, went inside and eventually emerged with a Styrofoam cooler that he put in the trunk of his car. Police followed him as he drove around south Baton Rouge for about 15 minutes in an alleged manner known as “heat checking” — or attempting to check for police who might be following him.
Eventually, police stopped his car in the parking lot of a Raising Cane’s restaurant on East State Street. Their next move is what triggered the ongoing legal battle.
The narcotics officers told Moore they were investigating an armed robbery and asked if he would consent to a search of his vehicle, and he agreed. They found the cooler, and Moore allegedly told them it contained salmon sent to him by his aunt. The officers discovered three vacuum-sealed bundles of salmon stuffed with 6 pounds of marijuana.
They then searched Moore’s residence, again with his consent, and found marijuana and a .32-caliber revolver. Moore was booked on charges of possession with intent to distribute marijuana and illegal carrying of a weapon with a controlled dangerous substance.
Prosecutors later charged him with those offenses, and his case was assigned to state District Judge Bonnie Jackson.
Moore’s attorneys persuaded the judge to suppress, or throw out, the evidence last fall on the basis that officers lied to him when they told him they were probing an armed robbery and that Moore consented to vehicle search based on that lie.
Prosecutors took their case to the state 1st Circuit Court of Appeal in Baton Rouge, where a three-judge panel reversed Jackson by a 2-1 vote. Circuit Judges Vanessa Whipple and Wayne Chutz reasoned that Moore’s consent was given freely and voluntarily.
“The officers’ alleged misstatement of their purpose in conducting the search did not vitiate the defendant’s consent,” they wrote in December.
But in his dissent, Circuit Judge Jewel “Duke” Welch stated that consent “cannot be knowingly and intelligently given when predicated on a lie by the police.”
Prosecutor Robert Savage contends Moore not only consented to the warrantless search of his car and home but also did so in writing.
“It stands to reason that any contraband or evidence discovered during a valid search may be seized and used against the defendant, regardless of the actual reason for the search,” Savage argues in documents filed at the 19th Judicial District Court.
Savage argues that “coercion and duress” — but not deception — can invalidate consent. Moore, according to the prosecutor’s court filing, has a record of narcotics activity.
Moore’s attorneys, Messina and his daughter Janna Messina Kiefer, appealed the appellate court ruling to the Louisiana Supreme Court, which voted 5-2 on June 3 to deny the appeal without holding a hearing.
Justice John Weimer, one of the high court dissenters, said the court should have heard the matter, acknowledging he does not know the answer to the “vexing question posed by the facts of this case.” But he added it’s the court’s role to perform the “delicate balancing” of determining what constitutes an unreasonable search, seizure or intrusion on the right to privacy.
“An irony in this area of law is that it is often those accused of crime, through our adversarial system of justice, who help define what is permissible action by law enforcement and help define every citizen’s right to be free from unwarranted searches,” Weimer wrote.
By refusing to hear the case, Justice Scott Crichton said, the state Supreme Court “passed on a valuable opportunity” to clarify and develop the law relating to “deceptive tactics used to gain consent to search.”
Crichton stated he understands the “necessarily clandestine investigative work” that a narcotics officer must perform but noted the U.S. Constitution provides a powerful guarantee of freedom from unreasonable searches and seizures while the state constitution extends that protection to prevent unreasonable invasions of privacy.
The state high court, Crichton explained, has found previously that officers “slightly” misstating the purpose of a search does not automatically invalidate a person’s consent.
“It troubles me here that the scope of the search seems to obviously exceed the represented purpose — conceivably the fruits of an armed robbery could be vacuum-sealed into fish, though it stretches the limits of my imagination,” he wrote. “Stated another way, I question whether the fish search passes the ‘smell test.’ ”
Crichton said cases involving deception to gain consent to search a vehicle are rare, and neither the court he serves on nor U.S. Supreme Court has directly confronted the question.
Messina said he has 90 days to ask the nation’s high court to hear the case and that he will do so. Judges Jackson and Welch “got it right,” he said.
A status hearing is set in Moore’s case next week in 19th Judicial District Court.