The Blunt versus the Cigar

In USA v. Timothy Brown, the First Circuit recently distinguished between a “marijuana blunt” and a “cigar” in the context of a police officer having “reasonable suspicion” to approach the car.

Rhode Island’s own, Justice O. Rogeriee Thompson, wrote the 29-page opinion:

…Brown argues that the reported observation of an individual smoking a “blunt marijuana cigarette,” absent any evidence of the detection of odor or other suspicious activity, and evaluated in conjunction with (1) the testimony of an officer that visual observation is insufficient to distinguish between a tobacco filled blunt and a marijuana filled blunt and (2) the absence of any observations of smoking or suspicious activity by Dineen and Waters, is insufficient to justify the stop.

First Circuit Suppresses Evidence after Unlawful Sweep

On appeal from a District Court ruling in Massachusetts, the First Circuit Court of Appeals – in US v. Siciliano – held that evidence seized pursuant to a warrant could not be admitted at a criminal trial because law enforcement would not have had probable cause to seek the warrant without information obtained during an unlawful protective sweep of an apartment.

Here is the beginning of Judge Lipiz’s opinion for the Court:

After obtaining evidence that Michael Siciliano (“Siciliano”) had ordered chemicals used in the manufacture of Methylenedioxymethamphetamine (“MDMA”), a controlled substance, agents from the Drug Enforcement Agency (“DEA”) began an investigation. While interviewing Siciliano in his residence with his consent, a DEA agent, along with other law enforcement officers, conducted a protective sweep of the apartment. During the sweep, officers observed materials used in the manufacture of MDMA and a plastic bag containing an unidentified powder. On the basis of an affidavit containing this information, agents obtained a search warrant and searched the premises. Siciliano moved to suppress the evidence discovered in the search, arguing, inter alia, that the protective sweep was unlawful and that the agents would not have sought a warrant if they had not discovered what they believed to be contraband during the sweep. The district court granted the motion to suppress, and then denied the government’s motion for reconsideration on the basis of newly discovered evidence.

On appeal, the government argues that the district court clearly erred in finding that the agents would not have sought the search warrant if they had not made the protective sweep, and that the court abused its discretion in refusing to grant the motion for reconsideration. After reviewing the record, we affirm.