Do police have right to search car after smelling pot that doesn't exist? | News
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Monday, January 19, 2015

Do police have right to search car after smelling pot that doesn't exist?

Posted by on Mon, Jan 19, 2015 at 1:44 PM

A Raleigh man has accused a police officer of an unlawful vehicle search after the cop scoured it for marijuana but came up empty.

However, since the man had crack in his pocket, he was arrested anyway—for trafficking and resisting arrest. He was convicted on both charges last January and sentenced to 35 to 51 months in prison.

This week Sharod Sorrell will have his case considered by the Court of Appeals. He argues that the crack evidence should have been suppressed since the officer lacked reasonable suspicion to go fishing into his car. The fourth amendment bans illegal searches and seizures.

Sorrell argues that the officer, Richard Sirianna, based his actions on the dubious claim that he smelled marijuana in his car. He further contends that the charge of resisting an officer was bogus, since citizens are free to walk away from unlawful investigatory stops.

Attorney General Roy Cooper's office counters that when a fleeing suspect voluntarily abandons property, that evidence is not subject to suppression. The office also maintains that Sirianna had adequate justification to detain Sorrell.

Sirianna and Sorrell were familiar with each other; on at least one separate occasion, Sirianna had searched Sorrell's car for contraband, and found nothing, according to a witness. 

The previous year Sirianna had received a Chief Citation for being in the top percentile for making drug arrests.

On the evening of June 11, 2013, Sirianna was patrolling the Dacion Road area when he heard loud music coming out of an apartment building, he testified. Sirianna traveled upstairs to the source of the music, knocked on the door but received no answer. Sorrell opened the door of an adjacent apartment and greeted Sirianna. Sirianna returned downstairs. 

Back in the parking lot, Sirianna smelled an "overwhelming" odor of marijuana odor emanating from a parked Cadillac, but couldn't determine if it was burnt or fresh, he testified. A window was open, and a cell phone lay on the inside console. Sirianna decided to wait to see if the car's owner would come retrieve the cell phone. He waited in hiding.

Shortly later, Sorrell came out of the building and entered the car. Sirianna revealed himself and twice commanded Sorrell to sit down, as this was now a drug investigation. Sorrell refused to comply. Sirianna grabbed Sorrell and ripped his shirt. A foot pursuit ensued. Sorrell fell to the ground. As he fell, he tossed a baggie filled with crack into a bush. Sirianna arrested Sorrell and confiscated the crack. He searched the Cadillac, but found no marijuana. After his motion to supress the crack evidence was denied, Sorrell went to trial.

Sirianna testified that he entered the apartment solely because of the loud music—and that it was "happenstance" that he smelled marijuana emanating from Sorrell's Cadillac afterward.

However, one of Sorrell's witnesses testified that she saw Sorrell look into the Cadillac with a flashlight before entering the apartment.

Another witness testified that Sirianna had twice stopped Sorrell in the past. On one occasion, she testified, Sirianna searched Sorrell's car but found nothing. On another occasion, Sorrell did not give Sirianna permission to search the vehicle, she testified.

In a separate argument, Sorrell contends that he shouldn't have been convicted of drug trafficking, because a chemist with the City-County Bureau of Investigation gave the opinion that the bag Sorrell tossed to into the bush contained the net weight of 5.5 grams of crack cocaine—less that the requisite 28 grams necessary for a trafficking conviction.

The Court of Appeals is expected to rule on the case later this year.
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