A unique case involving a marijuana-stuffed salmon and a Baton Rouge man facing drug and gun charges could soon land on the U.S. Supreme Court's docket.
In what is being described as an unknown area of law, Jacson Moore and his attorney are asking the nation's top court to reverse a Louisiana appeals court and disallow evidence — the vacuum-sealed bundles of salmon filled with 6 pounds of marijuana — seized by Baton Rouge police in 2012.
Marijuana-stuffed salmon confiscated by Baton Rouge police in 2012 are at the center of a un…
Rodney Messina, who represents Moore, contends narcotics officers lied to Moore when they stopped his car, told him they were investigating an armed robbery and asked for permission to search his car.
East Baton Rouge Parish prosecutors say Moore, 43, not only consented to the warrantless search of his car, where the fish was discovered, and home, where a gun and more marijuana were found, but also did so in writing. Prosecutors contend the searches were valid. Moore only seeks to suppress the evidence seized from his car.
The officers, according to Messina, had noticed a suspicious incoming package at the UPS processing center in Port Allen on Nov. 9, 2012. Suspecting that it might contain drugs, the officers allowed the package to be delivered to a Bob Pettit Boulevard apartment while they watched.
Moore retrieved the package from his doorstep, went inside and eventually came out with a Styrofoam cooler that he put in the trunk of his car. Police a short time later stopped the car. Moore allegedly told police the cooler contained salmon sent to him by his aunt. Police cut the fish open and found the marijuana.
In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery.
Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent.
"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.
Messina calls the officers' conduct "a reckless disregard for an individual's Constitutional rights." The lie they told, he adds, was "calculated and intended" to induce Moore's consent to search his car.
State District Judge Bonnie Jackson, who is presiding over Moore's case in the 19th Judicial District Court, threw out the evidence confiscated by police. She agreed last fall with Messina that Moore consented to the vehicle search based on the lie police told him about probing an armed robbery.
A three-judge panel of the state 1st Circuit Court of Appeal in Baton Rouge reversed Jackson by a 2-1 vote last December, with Chief Judge Vanessa Whipple and fellow Circuit Judge Wayne Ray Chutz calling Moore's consent free and voluntary. The dissenting circuit judge, Jewel "Duke" Welch, said consent cannot be knowingly and intelligently given "when predicated on a lie by the police."
The state Supreme Court, which did not hold a hearing, voted 5-2 to let the appellate court ruling stand. Justice John Weimer, one of the dissenters, said the court should have heard the case, noting that it poses a "vexing question" to which he does not know the answer.
Justice Scott Crichton, the other dissenting justice, said cases involving deception to gain consent to search a vehicle are rare, and neither the Louisiana high court nor the U.S. Supreme Court has directly confronted the issue.
Crichton also questioned "whether the fish search passes the `smell test.' " The state Supreme Court, he said, has ruled previously that officers "slightly" misstating the purpose of a search does not automatically invalidate a person's consent.
In his brief to the nation's highest court, Messina says the Moore case presents "an unknown area of law." He argues that a consent to search obtained by deceptive tactics is not a valid consent to search.
"The idea of police using deceptive tactics to obtain consent seems an oxymoron. How can one freely and voluntarily consent to a search based on a lie?" Messina asks.
"The officers ... did not slightly misstate their purpose. Rather, their purpose was a blatant lie to look for drugs. Why not ask him to search the vehicle for drugs? If he says no, the officers should have grounds for a warrant."
Messina concedes that law enforcement officials must devise effective weapons for fighting the "war on drugs."
"But the effectiveness is not proof of its constitutionality," he stresses to the nation's top court.
Historically, the U.S. Supreme Court agrees to hear only a small fraction of the cases sent its way.